Chris Lynch looks at Paul DePodesta's moves as Dodgers GM. The record is a pretty solid one, not worthy of getting him fired, although you can argue that, for example, the Derek Lowe and Jeff Kent signings are worse in combination than taken separately, given that Lowe requires a good middle infield defense. (On the other hand, Lynch doesn't discuss the non-signing of Adrian Beltre, which doesn't look that bad right now). And it does seem that DePodesta botched some of the other parts of the job, specifically backing out of deals that other GMs thought they had with him, a problem that may have resulted from the Dodgers' decisionmaking process. That smells like a combination of rookie mistake and perhaps meddling by ownership.

On the whole, I'd be glad to have DePodesta running my team. And, hey: he was a great #2, and Jim Duquette is gone . . . the Mets could do far worse than trying to get him on board, although he is doubtless looking for another #1 job.

Unsurprisingly, preeminent appellate law blogger Howard Bashman is thrilled with the nomination of Judge Alito, a judge he knows well; see here, as well as more on Judge Alito from Bashman here, noting Judge Alito's role in changes to the Federal Rules of Appellate Procedure.

At 8 a.m. this morning, President Bush is scheduled to nominate a successor to Justice Sandra Day O'Connor for the third time (bear in mind that John Roberts was initially tapped to replace Justice O'Connor), and it will, in fact, be Judge Alito of the Third Circuit. As I've said, Judge Alito isn't necessarily my first choice, but he's unquestionably qualified, with a wealth of experience (bio here), including 15 years as a federal appeals judge and 13 with the Department of Justice, first as a trial-level prosecutor for four years in New Jersey, then in DC with the Solicitor General's office and as a deputy assistant Attorney General during the Reagan years (1981-87), then as US Attorney for New Jersey from 1987 to 1990. He's a fine choice and a guy who shows every sign that he'll serve with distinction and, like John Roberts, can be expected to exceed the existing standards for Supreme Court nominees in terms of his accomplishments and brainpower.

Harry Reid is promising a fight. One popular caricature of Alito is the monicker "Scalito," hung on him by some journalists, but I gather he's really not as similar to Antonin Scalia as conservatives would like or liberals would fear; we'll learn more in the days to come, but it does seem that the nickname plays off of his ethnicity and journalistic laziness rather than any genuine similarity in temperament, style, or declared philosophy.

The buzz still seems to favor Third Circuit Judge Samuel Alito as the likely next judicial nominee. Judge Alito's not necessarily my first choice, but he'd be a good guy to go to war behind, if the Democrats prove intent on a war, which they may if they are calculating that Bush is weak and can be beaten regardless of the nominee's quality. That's not an insane calculation, although if that's the tack they take, the Democrats should realize that they are picking a fight that has at least the potential to play directly into Bush's best hope for re-energizing his base and regaining his lost momentum.

Anyway, Ground Zero in any battle over Judge Alito would be his dissent in Planned Parenthood v. Casey, the big 1992 abortion case that passed through the Third Circuit on its way to the Supreme Court. Patterico takes a close look at that dissent, which didn't reach the more explosive question - addressed by the Supreme Court - of whether Roe v. Wade should be overruled. Instead, Judge Alito found that the Pennsylvania statute at issue was constitutional under existing standards set forth in prior Supreme Court decisions. As Patterico explains about that conclusion:

[A]s Justice Scalia noted in dissent, "the joint opinion finds it necessary expressly to repudiate the more narrow formulations used in JUSTICE O’CONNOR’s earlier opinions." In other words, Judge Alito read her earlier opinions correctly, but the Court imposed a new, more restrictive standard in Casey. You can't blame Judge Alito for that.

(Emphasis in original).

But what's even more interesting about potentially staging a big fight over Alito's ruling in the Casey decision is the identity of the defendant, the governor who signed into law and defended in court the abortion restrictions that the Senate Democrats would presumably be describing as "extreme," "outside the mainstream," etc. - Bob Casey, the Democratic then-governor of Pennsylvania. And, of much more urgent interest, the father of the Democratic candidate challenging the most vulnerable of Republican incumbents in 2006: Rick Santorum. If the national Democratic party wants to make Judge Alito out to be a right-wing nutcase over finding that Bob Casey didn't violate the Constitution, sooner or later someone is going to ask his son if he agrees. And that's gonna be a question that will put him in an awfully bad position.

You will notice that I have added a new tool on the left-hand column: a search box you can use to go directly to the minor league statistics of current and recent minor leaguers, through 2005, at The Baseball Cube. I've used the Cube myself for a while.

1. Were I Libby, I would choose a bench trial. The judge, Reggie Walton (not this guy) is a Bush appointee and was previously appointed to positions by Reagan and Bush I. I don't know much about him and don't mean to suggest he'd go easy on Libby, but that beats the heck out of a D.C. jury when you are a prominent Republican, and Jewish to boot (at least I assume Libby is Jewish).

2. Man, this is a strong indictment. I've seen perjury indictments in the past and know a little about the law in that area, and unlike the DeLay indictments, Fitzgerald has nailed down all the legal requirements here, such as detailing the precise statements and setting forth why Libby's answers were material to the investigation.

Libby is basically accused of telling radically different stories to the grand jury and to investigators than the reporters (Judith Miller, Tim Russert and Matt Cooper) told, plus his story is apparently inconsistent with what he can be shown to have known based on his conversations with various government officials, including Dick Cheney, "a CIA briefer," Libby's "Principal Deputy," Ari Fleischer, the Counsel to the Vice President, the Assistant to the Vice President for Public Affairs, and "Official A," who may or may not be Karl Rove. If you are keeping score at home, that's ten witnesses, and that's before we get to the documents (Tom Maguire suggests that even Libby's own notes may have contradicted him, and that his attorneys should have known this). If all this holds up - and given Fitzgerald's reputation, I'd guess at least most of it will - Libby is toast.

3. Oh boy, the trial is gonna be interesting unless they find a way to close the courtroom (which would trigger immediate lawsuits). Just look at that witness list. Russert, Miller and Cooper have to be the star witnesses, but if Fitzgerald's theory is that the untruth of Libby's statements is shown partly by the fact that he had prior knowledge of Valerie Plame and her status as a CIA employee, and the first evidence of that is a conversation with Dick Cheney . . . how can Cheney not be a witness in this case?

4. Of course, as everyone has noted, the indictment states that Plame's employment was "classified" but does not suggest that she was a covert agent at any time that would be relevant to any of this.

5. Libby's behavior, if as alleged, seems incomprehensible unless (a) he was reckless in his certitude that reporters would never testify, (b) he's a compulsive liar, or (c) as Andrew Sullivan suggests, he was worried that Cheney himself would get in trouble and decided to fall on his sword for the Vice President. I suspect (a) is part of the story, but I also think that, if it is the case that Cheney told Libby that Plame worked for the CIA and that started the ball rolling, Libby was indeed worried about protecting his boss, whether or not Cheney knew anything about her having ever been covert and whether or not Cheney had any further involvement in leaking her name.

6. For the record: yes, perjury and obstruction of justice are serious crimes. I believed that in 1998, and I believe it now. There is such a thing as a hypertechnical perjury charge, but this isn't it, any more than the charge against Clinton was; in each case, the witness deliberately set out to obscure facts the tribunal was entitled to know (the difference being that Libby hasn't also been charged with inducing other witnesses to lie). Good to see that many Democrats and liberals have now decided to agree with those of us who have taken that position all along (see this NR editorial).

ConfirmThem has the latest hot speculation that Third Circuit judge Samuel Alito, nicknamed "Scalito" by some journalists, is going to be the replacement nominee for Harriet Miers, including word that Alito is in Washington this weekend. Alito is regarded as a real lawyer's lawyer, much like Roberts, rather than an ideological type, but if Bush is - as has been speculated - mainly interested in getting nominees who will uphold Administration policies on detainees, he is probably reassured by Alito's background as a prosecutor.

This profile has some observations on Alito, and reminds me of the fact that Alito probably benefits, in this process, from being close to Michael Chertoff, the Homeland Security chief who succeeded Alito as US Attorney for New Jersey and served briefly as his colleague on the Third Circuit.

It's too early to say with certainty what the long-range impact will be of conservatives leading the charge to cause the withdrawal of Harriet Miers' nomination. But that won't stop me from offering two lessons that President Bush should remember for the next nomination:

1. Competence is Non-Negotiable

Traditionally, the ideal with regard to the Supreme Court was to pick the best-qualified candidate from among the pool of judges, scholars, practicing lawyers and politicians who would be politically agreeable to the President. Granted, that ideal was often discarded in practice, but it was seen as desirable to follow it. There are many examples of such nominees - John Roberts, Antonin Scalia, Stephen Breyer, Ruth Bader Ginsburg, John Paul Stevens, Felix Frankfurter, Louis Brandeis, Benjamin Cardozo, Oliver Wendell Holmes.

There was always one countervailing pressure - the desire to pick a young nominee who would sit on the Court for a long time, the most obvious example of which was Clarence Thomas, who even after 15 years on the Court is younger than Harriet Miers and the same age as some of the candidates now being considered. As it turned out, Thomas was more than sufficiently skilled for the job, but his qualifications were admittedly somewhat thin at the time (I'll leave for another day the issue of why Thomas' qualifications were never as thin as Miers'; even then, once you accept the political reality that the first President Bush wanted a black nominee, there's little doubt that Thomas was the most qualified black conservative available at the time).

But the Borking of Robert Bork led to a second, new pressure against a highly qualified nominee, a pressure that had not existed before: fear that a nominee with a long record of judicial decisions and scholarly writings could be picked apart, fairly or unfairly, on the basis of that record. Thus, scarred by the Bork disaster and successive attempts to repeat the experience at the appellate level, the last four GOP Supreme Court nominees (Souter, Thomas, Roberts and Miers) have all been "stealth" candidates with limited paper trails.

The collapse of the Miers nomination is being spun in some quarters solely as an ideological battle, but I think liberal law professor Jack Balkin said it best:

The lesson of the Miers nomination is that stealth candidates must be widely perceived to have sterling credentials. President Bush was determined not to have another Souter, and he got his wish: Unlike Souter, Miers was perceived as insufficiently qualified. That made lack of clarity about her positions fatal to her nomination.

(Emphasis added). Of course, it goes without saying - as could be seen by the bipartisan nature of questions about Miers' qualifications - that the competence issue was one that resonated with people accross the political spectrum, not only giving conservatives nervous about her philosophical leanings an excuse to oppose her without objecting solely on ideological grounds but also giving Democrats a free excuse to oppose her at a later date without political consequence if it became useful to do so.

Howard Bashman sounded a similar theme, calling Miers' withdrawal "A victory for [conservatives; liberals; elitists; those who demand highly qualified nominees to the U.S. Supreme Court; bloggers]?" (See also this pre-withdrawal Bashman column). Andrew Sullivan, who'd been critical of the nomination, also focused on competence, which as you will recall was the deal-breaker for me and many others on the Right:

This is a big coup for the Washington conservative intellectual establishment and the counter-intelligentsia that has been deliberately built to tackle the left's academic monopoly these last couple of decades. They wanted one of their own on the Court, and they'll get one. At the very least, they have shown they have a veto against anyone too patently unqualified. Given Miers' credentials and post-nomination performance, we may have reason to be grateful for their clout.

My hope is that Balkin is right, and that the Miers withdrawal will come, in time, to be seen as a bookend to the Borking of Bork: a cautionary tale that presidents of any party should not go too far in seeking to avoid nominees with a distinguished public profile of litigating, adjudicating or commenting on issues of great public concern. And that, to me, is an extremely encouraging development, a healthy corrective to the Bork precedent.

2. You Can't Win A Nomination Fight You Aren't Willing To Lose

Every Supreme Court nomination, like every executive nomination and every piece of legislation supported by the White House, is a potential battle. That battle, like all battles, is fought on two fronts. The field of battle is in Congress, in this case the Senate: the President needs 50 votes plus the Vice President to confirm the nominee, and needs either 60 votes for cloture to prevent any filibuster or 50 votes to trigger the so-called "nuclear option" and eliminate the filibuster forever. The conditions of that battle, however, can be dictated by success or failure in mustering public opinion: the President may need to move public opinion in favor of the nomination to get wavering Senators to support confirmation, cloture or the "nuclear option"; at a minimum, he needs to avoid having adverse public opinion cause potential supporters to defect. Thus, each nomination must be crafted with an eye towards both fields of battle - the Senate and the public.

Because the public's view can influence that of the Senate, picking a nominee based on perceived acceptability to the Senate without regard to public reaction risks the classic problem of quagmire, where conditions in the field deteriorate if the battle is protracted because lack of support on the home front makes it impossible to keep all the President's troops in the field. A second corollary is that "the public" includes all those forces outside government that influence elected officials - the voting public, the activists who do party-building and get out the vote work, the donors who finance party politics, and the pundits (including bloggers) who take steps large and small to move public opinion. No nomination will win the unanimous approval of all these groups, but all have their roles in the process.

Understanding, then, the conditions of the battlefield, let us examine the lessons of battle that President Bush failed to absorb with the Miers nomination but needs to remember in his next choice. First, consider the objectives and the alternatives. The President's #1 goal should be to get a good nominee confirmed, with a good nominee being one who will be consistent with the stated philosophy of the President and his party and who, hopefully, will provide some measure of political benefit by confirmation - by satisfying the President's supporters, by meeting the approval of potential supporters of the President's agenda, and/or by reducing or dividing the intensity of the opposition.

But considering the benefits of confirmation is only half the battle. With fewer than 60 Senators committed to the same goals as the President in terms of philosophy and political objectives, the President must also consider the possibility of defeat and must choose a nominee who will also provide political benefits if the President's nomination is defeated. Because the first rule of any potential battle is that weakness invites opposition.

Recall Sun Tzu's dictum about war:

To fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy's resistance without fighting.

Unlike some conservatives, I don't believe the President needs a fight over a nominee; while I would in some ways enjoy such a fight and think it would provide some benefits, I would be happier to get a good nominee confirmed without a fight, as with John Roberts.

But consider how Bush avoided a major fight over Roberts. Roberts was nominated not only with the intention of picking a nominee who would mollify the moderate Senators (liberal Republicans, conservative Democrats) who determine the immediate conditions of battle. His nomination also avoided a fight because, if Democrats had filibustered him, they would have looked terrible to the public. Because Roberts was so obviously qualified and had no ethical or other non-ideological problems, the only possible basis for opposing him was his judicial philosophy and the contention that his personal beliefs would impact that philosophy. Particularly given that Roberts presented that philosophy in fairly non-threatening terms, moderate voters would have seen this as pure obstruction. Meanwhile, Roberts was sufficiently reassuring to conservatives that he was viewed as a potential improvement on the court, and because of his relative youth, he was seen as a potentially lasting improvement. A filibuster would have ended up backfiring on the Democrats, and probably could not have been sustained for long in the face of public disapproval.

Thus, the Roberts fight would have been a good fight to lose - and precisely because it was a fight that would help Bush if he lost it, he never had to fight.

The Miers battle was precisely the opposite. Bush evidently regarded Miers as a good fight to win, as he would get a Justice he had faith in. But he failed to consider the fact that she was a terrible fight to lose. As Josh Marshall, looking across the battlefield from the opposite side, put it:

Nominations can have dynamics similar to those of political scandals.

We tend to think that the real key to a scandalee's fate is how many mobilize against him or her. Usually, though, the key issue is whether and how quickly they can find some committed group to mount a defense. If that happens, and quickly, a scandal equilibrium can be reached, and an embattled pol can often withstand merciless attacks and revelations. With no true base of support, however, a career can rapidly collapse even if the opposition itself isn't all that intense.
Miers' nomination could fail in a similar way.

Sure, only a few Republican senators have expressed serious misgivings. But who is it exactly, either in or out of the senate, who is going to fight hard for this nominee?

Nobody but the President had a first-hand basis to believe that Miers was well-qualified for the job or to believe that Miers would improve the Court in terms of her judicial philosophy. Accordingly, if - as has happened - Miers was defeated, nobody but Bush himself would give Bush credit for having put forth such a nominee in the first place. Indeed, one of the predominant arguments of supporters of the Miers nomination from Day One was that Republicans should support her because the President had put himself in a position where it would be damaging to lose.

This, of course, was evident as well to Democrats, which meant that they knew from early on that they would have the initiative. With the President's own supporters divided and many of his best troops switching sides, a battle would be on unfavorable turf for the White House. With non-ideological grounds available to oppose the nominee (not just competence but the plausible charge of cronyism), the Democrats could choose to oppose - if they wanted - at their convenience without fear of reprisal. With Republicans fighting among ourselves, Democrats could afford to wait and choose the time and place to come out in open opposition. In short, by picking a nominee whose qualifications were not self-evident and who had few genuinely committed supporters, Bush created a battlefield on which he could gain nothing by losing, while the Democrats would lose nothing by winning. By seeking compromise, he ended up compromised. In the end, he was better off retreating entirely from the field and picking a new nominee.

Nor was internal opposition to Miers at all unpredictable, especially given her thin qualifications; I'll explore this at greater length another day, but while Republicans have as many different internal fault lines as Democrats, what gives the GOP a much higher level of cohesiveness is its priorities, the fact that conservatives and Republicans will accept a lot of things they don't agree with as long as the party unites behind the Big Three of national security, lower taxes and the courts. Bush could win a battle over, say, expanding Medicare by invoking the need for party unity to accomplish more significant goals. But picking a Supreme Court nominee who is perceived as unacceptable goes to the core of the party's purpose, and guarantees internal opposition. A Republican president can not hope to win a Supreme Court fight by expanding the battlefield to promise ofsetting benefits on other issues; he needs to win it on its own terms.

So no, in selecting his next nominee, Bush doesn't needs to pick a fight. But he does need to pick a nominee who is worth fighting for. If you don't pick a nominee you want to fight over, your opponents will know they can beat you by fighting.

As I have written before, I personally would prefer that Michael McConnell, the distinguished Constitutional scholar, veteran Constitutional and commercial appellate litigator, and now Tenth Circuit judge, be the nominee. McConnell might or might not provoke a fight, but it's a fight on Bush's terms, and one Bush could lose with his head held high on the basis of having picked a supremely qualified candidate (McConnell knows Con Law even better than Roberts), well-liked among Bush's core supporters and respected by his opponents. If Bush prefers someone else among the many qualified candidates available, he should look for someone about whom the same could be said. But he needs to remember that only by choosing battle can he hope to avoid one.

The Democrats are now doing with the Harriet Miers nomination that thing they do best . . .

First, several prominent Senate Democrats are now claiming that they were just fine with Miers, so as to blame "the extreme right wing" for doing in her nomination. As Carol from ConfirmThem points out here and here, this is in direct contradiction to their own previous statements about Miers.

And, hey: we were all told, repeatedly, by Miers' friends that she was opposed to abortion and likely to vote to overturn Roe v. Wade. Are Kos and the Senate Democrats now admitting that they would have permitted a floor vote for, and possibly confirmed, a nominee who was - in Barbara Boxer's words - "anti-choice"? Because maybe now they can retire that talking point too.

Deja vu all over again. Congrats to the White Sox and their long-suffering fans.

You have to feel for the Astros, who fittingly went down 1-0 in the last game of a season where they struggled all year to score runs; after staging four of the toughest postseason games you will ever see, all anyone will rememeber within a few years is that they go swept. Let the record show that, unlike the 2005 Cardinals and 1999 Braves, this team did not go down easy. Instead, in a season when they lost Carlos Beltran and Jeff Kent, started without Lance Berkman and had to weather most of the season without Jeff Bagwell, they fought their way through some of the most epic postseason games in history and ended up going further than any Astros team ever has. Well played.

An informed source sent me a copy of this morning's Chicago Tribune print edition, which contains an early version of this Phil Rogers column, referencing events through the 8th inning of last night's game, in which Rogers noted that White Sox pitchers like Dustin Hermanson were getting a chance to brush off the rust and get into the series, but concluding:

"It's too bad for the likes of Geoff Blum that playoff baseball rarely features garbage time."

Hugh Hewitt has propounded 9 questions for Miers critics on the Right:

Does George W. Bush deserve any loyalty from his party? From pundits identified with his party? If so, how much and why not more?

Do Harriett Miers' many accomplishments count for nothing?

Does Harriett Miers strike the commentator as a dedicated public servant?

Why not wait for the hearings to at least begin?

How important is it that Roe v. Wade/Casey be reversed?

Which five precedents does the commentator think are in most pressing need of reversal?

Does the commentator agree with George Will's assertion of Justice Lewis Powell as the "embodiment of mainstream conservative jurisprudence?"

Is a neo-Borking underway which will discredit the conservative cause's defense of its future nominees against similar, future attacks from the left?

What are the political consequences of a defeat of Miers at the hands of a GOP controlled Senate?

I was going to post a detailed response, but Patterico, Dale Franks and Jeff Goldstein have said much of what needs to be said in responding to Hewitt. I may update this post later with my own answers, if I get the time.

But here are some questions - 22 of them - for Hewitt and other Miers defenders on the Right (including Beldar, if he sees fit, although these don't mainly go to Beldar's arguments, plus Beldar is doubtless busy mourning the Astros at the moment). Thanks to Dale Franks for his input on the questions. They don't capture all of the hard questions, but a lot of them for those of us who consider ourselves conservatives and, in general, loyal Republicans, and I would honestly like to hear how Hewitt and other Miers defenders (including those still in the "wait and see" camp) deal with these:

The Limits, if any, of Loyalty to Party Leaders

1. Some conservative/Republican pundits/bloggers honestly believe Harriet Miers would be, for various reasons, a bad Supreme Court Justice. Do you believe those pundits/bloggers should (a) state their concerns publicly, (b) keep their mouths shut, or (c) support her anyway?

2. What issues are important enough issues to justify taking an active stand against a Republican president or Republican congressional leaders? Are there any such issues, other than the war?

3. Is the GOP worse off because John Tower's nomination for Defense Secretary failed and he had to be replaced with Dick Cheney?

4. Is the GOP worse off because Republicans and conservatives - pundits, bloggers, and elected officials alike - participated in forcing Trent Lott to step down as GOP Senate Majority Leader?

5. Is the GOP worse off because Ronald Reagan ran a primary campaign in 1976 against a sitting Republican president who then lost the general election by two points?

The Nominee's Qualifications and What Will Be Learned at the Hearings

6. Does it matter if a Supreme Court Justice does not write clear and logical opinions?

7. Does it matter if a Supreme Court Justice does not know constitutional law well enough to avoid writing opinions in one case that will have unexpected bad consequences in other cases?

8. Even limiting the search to lawyers in private practice who have not been judges, and judging by the standards of legal reasoning and persuasive argument, is there any reason to believe that Harriet Miers was in the top 50 or 100 best lawyers in this country? If not, does it matter that she is not?

9. Please cite examples of Harriet Miers' writings that demonstrate an ability to write and reason clearly. If no examples are available, please explain why we should believe that such examples will be forthcoming before her nomination will be put to a vote.

10. What concrete, relevant information do you believe we will gain at the hearings regarding Harriet Miers' qualifications and philosophy that we do not already have?

Making the Left's Arguments

11. Do you believe that continuing to tout Miers' gender will, if she is voted down or withdrawn, make it impossible for President Bush to consider a male nominee?

12. Do you believe that continuing to tout Miers' religion will, if she is voted down or withdrawn, make it impossible for President Bush to consider a non-evangelical Christian nominee?

13. Do you believe that it is important to have an evangelical Christian among the Justices? If so, why is this different from other religious tests, and is it proper for nominees to be questioned about their religion?

14. Are Harriet Miers' personal beliefs on abortion relevant to your support for her? If so, is it proper for nominees to be questioned about their personal beliefs on abortion?

15. Of the three, which should the #1 goal in Supreme Court battles: (a) getting Justices who produce good results, (b) getting Justices who follow good legal reasoning, or (c) getting Justices whose confirmation provides political benefits to the party?

Back At You

16. How important is it that Roe v. Wade/Casey be reversed?

17. Which five precedents do you think are in most pressing need of reversal?

Role Models

18. Would you be satisfied with another Justice just like Lewis Powell? Potter Stewart? Warren Burger? Anthony Kennedy? Sandra Day O'Connor?

Consequences

19. Do you believe that a significant portion of the GOP base is unhappy with the Miers nomination?

20. If not, do you believe that the pundits/bloggers who are openly critical of the nomination - including Rush Limbaugh, National Review, The Wall Street Journal, Bill Kristol, Laura Ingraham, Charles Krauthammer and George Will - are important parts of the GOP's ability to win public issue debates and elections?

21. Do you believe that the GOP is currently heading for a successful 2006 election cycle if it keeps doing the things it has done in 2005, or is a change of course needed to motivate the base and persuade swing voters?

22. Do you believe that a defeat for Miers would make it less likely that candidates with no paper trail will be nominated in the future, just as Bork's defeat make it less likely that candidates with extensive paper trails and well-known public positions would be nominated? Would that be a good thing?

Just throwing it out there to sidetrack the Baseball Crank's day, but after Brad Lidge's second demoralizing walkoff homer, is there any way to figure out the ratio of "Closer eventually bouncing back and becoming effective again" to "Closer who was never the same"? For instance, Calvin Schiraldi was probably the best pitching prospect in the Boston farm system before the '86 playoffs - look at his regular-season stats in 1986 compared to everything that followed in his career. And what about Byung Hyun-Kim, Donnie Moore, Mitch Williams, Mark Wohlers, Tom Niedenfuer ... really, the only guy I can remember who kept chugging along was Dennis Eckersley after the '88 World Series. Anyway, let's see what the Crank can dig up on this.

Well, I can't well turn down that challenge, can I? So, I decided to walk through every example I could find of a relief pitcher blowing the big game in the postseason, and see how they fared the next few years. A few observations:

*I limited myself to the postseason and season-ending playoffs rather than the regular season.

*I limited myself to relievers. That knocks out both starters who blew the big one (think: Mike Torrez), and starters pitching in relief, which eliminated Ralph Branca in 1951, Ralph Terry in 1960 (Mazeroski's homer), Bob Moose in 1972 (the wild pitch that ended Game 5 and the NLCS), Pat Darcy in Game 6 of the 1975 WS (the Bernie Carbo Carlton Fisk homer; Darcy never pitched effectively again), Jack McDowell in Game 5 of the 1995 ALDS, Kenny Rogers in Game 6 of the 1999 NLCS, Derek Lowe and Rich Harden in Games 1 and 3 of the 2003 ALDS, Tim Wakefield (the Aaron Boone homer), Jeff Weaver (2003 WS Game 4), and Esteban Loaiza (2004 ALCS Game 5). I also left off Aurelio Lopez (1986 NLCS Game 6), an aging veteran who was just the last guy left on a staff.

*I ended up limiting the study to 1972-present. Before that period, there just weren't enough examples of relievers blowing the big game; starters tended to stay in longer, and before 1969 the postseason was a lot shorter. The only one that came to mind was Johnny Miljus throwing the wild pitch that ended the 1927 World Series; while Miljus struggled the next season and was swiftly put on waivers, I have a hard time thinking a guy who contributed to his team being swept by the 1927 Yankees was much of a goat.

*I noticed that the combination of more relievers, longer playoffs, more scoring in general and more home runs in particular has led to a massive upswing in recent years of huge game-breaking reversals of fortune in the postseason. Just in 2003-04 I counted 17 pitchers, counting guys who collaborated in big collapses including three in the 2003 Red Sox-A's ALDS and four apiece in the 2004 NLCS and ALCS.

Here we go. I broke the pitchers into three categories: guys who survived, guys who were ruined, and guys who came away in some sense damaged but not destroyed.

Moose threw the wild pitch, but it was Giusti, the Pirates' veteran closer, who blew the 3-2 lead in the ninth inning of game 5 of a best-of-5 series. Mitigating factor: the Pirates were already the defending champs. Giusti was just-y (hah!) fine the next season. Survived.

The 24-year-old Eastwick served up Fisk's Bernie Carbo's home run. (UPDATE: It has been pointed out to me that I went through the box score for this one too quickly and mixed up Eastwick and Darcy - it was Eastwick who gave up the big blow, the 3-run homer to Carbo that tied up the game in the 8th when the Reds were just four outs away from their first World Championship in 35 years). Mitigating factors: It was a tie game, and the Reds came back and won the next day. He was just as effective the next year. Survived.

Our first serial offender, Littell gave up Chris Chambliss' home run and the following year participated with four other pitchers in blowing a 3-1 lead in Game 5. Mitigating factor: Littell wasn't mainly responsible for the 1977 disaster. He was traded after 1977, but pitched effectively for two more years. Survived.

Gave up George Brett's massive game-breaking homer to cement a humiliating ALCS sweep. Mitigating factors: the series was a sweep, and the Goose already had the 1978 playoff game and championship under his belt. Gossage would also allow a famous but less crushing home run to Kirk Gibson in the 1984 WS. Posted an 0.77 ERA the next season, and kept on cruisin'. Survived.

A few mitigating factors: these weren't notably crushing losses, and the Dodgers won the series and went on to win the World Series. Stewart, a rookie reliever, pitched decently the next two years before the struggles that would land him in Oakland, but took years to establish himself as a star. We can count him as Damaged.

These were fairly routine losses. The Quiz had some decent years thereafter, but dropped from 37 saves in 1985 to 12 and never recovered as a big-time closer. May have been his age and workload, but the postseason shot to his confidence may have contributed. Damaged.

The Ozzie Smith and Jack Clark homers; Niedenfeur, a successful closer through 1985, is the best comp for what has happened to Brad Lidge. Fell off sharply in 1987 and, while he had a few effective moments, was never the same again. Ruined.

The Steamah was running out of steam by 1986 anyway, and the Sawx converted him back to a starter the next year with disastrous results. He did pitch OK in 1988, but was done as an effective year-in-year-out pitcher. We can count him as Damaged.

Pena wound up losing the classic Morris-Smoltz duel. This brought an end to his string of effective years. He pitched OK in 1995, including in the NLDS and NLCS, before losing Game 3 of the 1995 WS in extra innings. We can count him as Damaged.

The Francisco Cabrera/Sid Bream game, which the Pirates led 2-0 when Belinda entered the game. Belinda was sent packing the following season, but his overall effectiveness in 1993-95 was about the same as in the prior three years. Survived.

Before the Joe Carter game was Game 4, a raucous 15-14 affair where the Phils had a 4-run lead when Williams entered the game in the 8th. Williams was utterly Ruined and threw less than 40 more major league innings.

The Jim Leyritz home run. Wohlers actually saved 33 games the next year before falling apart, so we'll list him as Damaged, but he was never quite the same.

Mariano Rivera, 1997 ALDS Game 4, 2001 World Series Game 7, 2004 ALCS Game 4:

Rivera survived blowing three huge season-killing postseason games, beginning with the Sandy Alomar home run, for the same reason Bill Gates survives losing $10 million in a bad day for Microsoft stock. Survived.

Armando Benitez, 1997 ALCS Game 6, 1999 NLCS Game 6, 2000 World Series Game 1:

This is the abridged version of Benitez' regular- and postseason rap sheet of big game disasters. Let's list him as Damaged; he's never let the big ones stop him from being an effective closer, but you have to think the long series of big-game implosions are more than just a coincidence and have fed off each other.

The 2004 debacle was partly mitigated by the fact that four pitchers (including the revered Rivera) participated in it, and the 1998 game wasn't a really unusual loss, nor a particularly close series. Gordon has Survived untouched.

The Todd Pratt walk-off series-ending homer. I'll list Mantei as having Survived, since his on-and-off effectiveness before and after the homer were the results of injuries; he remained the same pitcher he was before.

McGlinchy, a promising rookie, had the lead entering the bottom of the 15th of the Robin Ventura "grand slam single" game. I guess we can label him Ruined since he has pitched just 8.1 innings since then, although this was due to injury.

As a rookie, surrendered Benny Agbayani's walk-off 13th inning homer in a tie game, which turned the series. Fultz was the same mediocrity he'd been before for the next four years, before finding himself in 2005. Survived.

The main one is the 2000 David Justice homer, but the game-tying Bernie homer in 2001 hurt too. The Colossus went on to the best years of his career in 2001-02, so he Survived. (Jose Paniagua, the losing pitcher in the Justice game, didn't fare so well).

Allowing a back-breaking homer to Chipper Jones in a tie game was actually the last of Wagner's postseason failures; we'll list him as Damaged, as his record is a smaller version of Benitez' and he has kept blowing big regular-season games. Personally, I expect Lidge to follow the Benitez-Wagner career path.

Nen's arm gave out over thr course of the last half of 2002, culminating with the Troy Glaus double that sealed the Giants' fate, and he hasn't pitched since. We'll list him as Damaged, since this wasn't really a psychological thing but he did see his career end.

The real goat of the 2003 Cubs' demise was Farnsworth, not Steve Bartman or a tired Mark Prior. The mercurial Farsnworth recovered this year after a lousy 2004; while he'd always been inconsistent, we'll label him Damaged.

UPDATE: An emailer points out that Farnsworth's damage assessment should also include Game 4 of this year's NLDS.

Another David Ortiz victim. K-Rod had a rough postseason again this year, but I'll count him among those who Survived.

(UPDATE: A commenter notes that I remembered wrong - it was Washburn who surrendered the Ortiz homer. K-Rod, of course, had also been the losing pitcher in Game 2. So you can discount him from the list if you like).

An overworked Quantrill ran off the rails in the middle of 2004, so his ALCS meltdown was just part of an ongoing process on his way from 2003 star to 2005 batting practice pitcher. We'll mark him Damaged.

The Jeff Kent homer. Izzy's team lived to win the series, and he had a career year in 2005. Survived.

Conclusion: Even using a fairly broad definition of "Damaged," and understanding that in any season a certain number of successful relievers will fall off, we come up with a list of 22 relief pitchers (55%) who Survived a major postseason disaster, 12 (30%) who came away in some sense Damaged, and just 6 (15%) who were thoroughly Ruined by the experience, those being a mixture of young guys (Schiraldi) and established veterans (Niedenfeur, Williams).

Lt. Col. Herbert Carter is 86 years old and ready for deployment. . . . Col. Carter is one of seven aging Tuskegee Airmen traveling this weekend to Balad, Iraq - a city ravaged by roadside bombs and insurgent activity - to inspire a younger generation of airmen who carry on the traditions of the storied 332nd Fighter Group.
"I don't think it hurts to have someone who can empathize with them and offer them encouragement," he said.

The three-day visit was put together by officials with the U.S. Central Command Air Forces to link the legacy of the Tuskegee Airmen with a new generation.

I have enjoyed and respected Hugh Hewitt's contributions in the past, even if he is the Josh Marshall of the Right, a guy who is not just the most thoroughly partisan of pundits but one who seems to draft every post with the express goal of moving the chains in his side's direction.

But Hewitt has really gotten on my nerves, as well as those of a lot of other conservatives, with his bareknuckled assaults on critics of the Miers nomination. Among these arguments, he has spent weeks arguing that those of us who want Supreme Court Justices to actually know constitutional law are misguided elitists; con law, Hugh argues, is just so simple that any half-decent lawyer can do it. It is, if anything, anti-democratic to insist that only those familiar with the body of constitutional law can serve on the Court. A curious argument coming from a man who teaches constitutional law, but that's his position, and he's stickin' to it. Or was.

I see many on the web are exercised about Harriet Miers' support for affirmative action in the private setting of support for resolutions of the Texas Bar urging quotas in hiring at private law firms. It is not a policy with which I would agree either, but it also not a matter of constitutional law, unless under Brentwood the action of the Texas Bar in urging private firms to set strict goals has converted into a state action. Don't know what Brentwood is? Or the state action doctrine? Not many people do. But those that don't ought not to be confusing ConLaw with the private decisions of private firms while agruing that this policy makes Miers suspect on Bollinger. Now, if she supported a soft line on the Bollinger cases, that would be a legitimate area of concern, but not the Texas Bar resolutions.

For a guy who thinks Supreme Court Justices don't need to know Con Law, Hewitt sure is quick to use his own expertise in the area to pull rank over pundits who don't know Con Law.

UPDATE:Jonah Goldberg makes the point succinctly as to why the requirements for having informed opinions is lower, not higher, than the standard for getting the job: "Ben Affleck deserves an Oscar more than I do, but that doesn't mean he deserves an Oscar."

Early in the game, my 8-year-old son predicted that the game would go extra innings, the Astros would score and take the lead, and the White Sox would then rally and win. Now, mind you, this is the first year he has followed the baseball standings (as opposed to just watching individual games), and when the White Sox jumped out to a big lead early in the regular season, he kept saying they were going to win the World Series, and I kept explaining to him that no, they really aren't that good. Bear also in mind that he was insisting during the early innings of tonight's game that Scott Podsednik was the White Sox' best hitter, and asking how many home runs he had hit this year.

I may never again convince him that I am right and he is wrong.

I thought the Red Sox last year had the hammerlock on the record for most bad baseball karma reversed in one postseason, but really, what more can break the Pale Hose's way? Jermaine Dye gets hit on the barrel of the bat with two outs and very mistakenly awarded first base, and does the blown call pay off? Next batter, BAM! Konerko hits a grand slam. (You can't even get odds right now on Konerko signing an extravagantly large offseason deal with the Mets and batting .246 with 7 home runs at the 2006 All-Star Break).

You know, with the beard and all, Willy Taveras certainly looks like Frank Taveras.

You gotta give some serious credit to Jeff Bagwell for triggering the Astros' game-tying ninth inning rally by singling off Bobby Jenks. Bagwell didn't really look any less overpowered than last night, but he managed to fight a pitch into center field, and that was enough. And that game-tying slide by Chris Burke was just amazing - it was like a Lance Johnson slide. You couldn't duplicate the way Burke managed to land with his body in front of the tag and the hand that actually touched the plate behind the tag. It's one of those reminders of how elevated the quality of postseason baseball is; it's practically a different game from what you see in April.

Humorous Joe Buck quote of the night: calling Jose Vizcaino (career OBP: .318; career high in slugging: .397) a "professional hitter." Of course, then McCarver brought back ugly memories of the 2000 Subway Series . . . I was looking back in the Win Shares book one day and noticed that, in 1995, Vizcaino led the Mets in Win Shares. When Jose Vizcaino is your franchise player, you have problems. But he came up big tonight, for what it was worth for one exciting half-inning.

A justice without the strength of mind to pick her way through these intricacies and the skill to explain her decisions in understandable and compelling prose suited to those intricacies will flounder in a number of ways that would be disastrous for the law. Such a justice might rely on instincts undisciplined by clear analysis and therefore over time spin a web of confusion which increasingly will entangle that justice, the justice's colleagues and a perplexed public. Or that justice might fall under the sway of one or more of his or her colleagues and so disappoint the expectation that a fresh and independent mind has been added to the court.

Worse still, if the justice cannot write then someone is going to have to do that writing for the justice, and that will inevitably be the justice's law clerks. Those law clerks almost to a person are wizards at untangling legal puzzles and masters at setting out the answers in precise if usually turgid and uncompelling prose. But they are also young graduates without wisdom, experience, or a constitutional mandate to help run the country.

Unfortunately over its history the Supreme Court has had its share of intellectually inadequate, wavering, incoherent, absurdly stubborn, or clerk-driven justices.

Mickey Kaus notes that it is the wrong approach for Democrats, should there be indictments in the Valerie Plame case, to try to use the case to re-argue the entire case for war in Iraq rather than just stick to the basic charge of jeopardizing the CIA:

Shouldn't it be a general premise of Democratic politics that it's reality-based and not spin-based? And while Dems might get a majority of Americans to agree that the Iraq War was a bad move, they'd get about 95% to agree that compromising covert American agents is a bad move. Why not make the latter the issue?

It's not just that this would be a mistake, but that it's the exact same mistake they've made before: most notably in 1987 when the Democrats discovered the Reagan Administration doing something politically explosive and contrary to its stated principles - trading arms to Iran for hostages - and frittered away all the political benefits of this revelation by instead staging a huge fight over the Nicaraguan side of the Iran-Contra scandal, which to most of the general public amounted to the allegation that Reagan's people were going too far in fighting Communism in the Western Hemisphere. This was, of course, an issue on which the Dems had been whupped by Reagan in the past, and they were so eager to settle the score that they wound up getting a lot less mileage out of the scandal than they probably should have.

Could it be, however, that Smith is inviting, tempting, seducing his fellow academics to consider the theological way out of the quandary--the way that seemed to work for the classical school?

As one reaches the end of the book, after reading Vining's just-short-of-theological imaginings followed by Smith's acknowledgment of "richer realities and greater powers in the universe," he (she?) is sorely tempted to leap up and cry out, "Say it, man! Say it! Say the G-word! G-G-G-G-God!" Surely even academics can accept, as a hypothetical author, a hypothetical God!

*Well, I guess the White Sox' record of not facing a healthy #1 starter continues. Those are the breaks people forget three years later when they're trying to remember how the heck that team won the World Series.

*It was a wierd sort of deja vu sitting with my 8-year-old son watching Clemens go out of a big game early - I remembered back when I was in college, seeing Clemens get ejected from the deciding game of the ALCS for arguing balls and strikes, or back to when I was 15, watching Clemens and Dwight Gooden both get shelled early in Game Two of the World Series. On a related note, I loved the graphic showing that the White Sox' GM, manager and coaches had more career at bats vs. Clemens than their players.

*They don't give points for style - it counted just like Albert Pujols' moonshot - but it's pretty hard to hit a less impressive home run than Mike Lamb's shot to tie the game at 1-1 - not only did it clear the fence by just a foot or so, it was caught pretty much on the fly by a middle-aged woman in the first row.

*Dumbest quote of the night, from Joe Buck: "Even with the DH, the White Sox are showing they are not getting away from small ball in the World Series." Yeah, funny how an American League team adjusts to playing with the DH.

*I really felt bad for poor Jeff Bagwell facing Bobby Jenks in the 8th inning - here Bagwell has had shoulder surgery and barely swung a bat against live pitching in months, and he's facing a guy throwing 100 mph heat. Two or three years ago he would have put a heater like that in orbit, but now, after Jenks' first pitch, Bagwell had a distinct look on his face that said "I'd really rather be watching that pitch from a recliner in my living room."

A reader asks Professor Bainbridge whether Harriet Miers should resign as White House counsel because of the risk that further actions as White House counsel could lead to further recusal issues down the road on the Court. As a practical matter, I doubt she's doing much counseling at the moment, so this is somewhat theoretical, but it would probably be prudent to take a formal leave of absence (sitting judges, of course, don't step down for a more practical reason: they don't want to give up their current life-tenured jobs).

Can Miers's confirmation be blocked? It is easy to get a senatorial majority to take a stand in defense of this or that concrete interest, but it is surpassingly difficult to get a majority anywhere to rise in defense of mere excellence.

Still, Miers must begin with 22 Democratic votes against her. Surely no Democrat can retain a shred of self-respect if, having voted against John Roberts, he or she then declares Miers fit for the court. All Democrats who so declare will forfeit a right and an issue -- their right to criticize the administration's cronyism.

And Democrats, with their zest for gender politics, need this reminder: To give a woman a seat on a crowded bus because she is a woman is gallantry. To give a woman a seat on the Supreme Court because she is a woman is a dereliction of senatorial duty. It also is an affront to mature feminism, which may bridle at gallantry but should recoil from condescension.

As for Republicans, any who vote for Miers will thereafter be ineligible to argue that it is important to elect Republicans because they are conscientious conservers of the judicial branch's invaluable dignity.

I find this one a tough one to call. Rational analysis gets you only so far in the postseason; I often find it more effective to look backward at which storyline seems more likely to unfold. On the one hand, the Astros have better front-line talent; they have two big-time bats (Berkman & Ensberg) to the Sox' one (Konerko), they can go 1-2-3 with an inner-circle Hall of Famer who had his best career ERA, followed by a guy who has four World Series rings and posted his career-best ERA, followed by the only picther in baseball to win 20 games each of the past two years. They have the fire-breathing closer (granted that Lidge doesn't seem as scary after the Pujols Bomb). The White Sox, by contrast, have depth - four real good starters vs. three great ones, four tough relievers vs. the Astros' three, a leadoff man who gets on base (Houston has nothing of the sort at this juncture), and an overall deeper lineup. All in all, they're pretty well-matched teams.

It's worth noting that the Sox got this far by beating two teams that were without their ace starter, whereas the Astros have three of them. In fact, let's rank the starters the White Sox have faced or will face in the playoffs by ERA+ (for those of you who are unfamiliar, ERA+, the baseball-reference.com stat, adjusts ERA for league and park - the higher the better):

So, you have to figure they will have a lot more trouble with the Astros, other than Backe. And the small-ball approach will have trouble against Clemens (because of the strikeouts) and Pettitte (who can strangle the running game with baseball's best pickoff move).
In general, the front-line stars usually outshine the deeper teams.

For all of that, I have the feeling that this is, at long last, Chicago's year. The team is deep and well-balanced, and the storyline of Ozzieball seems destined to be written. This will be a tight, tough series (although expect one or two high-scoring games, just because baseball is like that). White Sox in Seven.

After weeks of trying to keep an open mind about the Harriet Miers nomination, I've concluded that the Senate should vote down Miers - if her nomination isn't withdrawn first - and force President Bush to nominate someone else. Let me explain why.

Now, as you will recall, I was initially disappointed with this nomination, but then John Roberts wasn't my first choice either. You need more than disappointment at the absence of better candidates to justify actively opposing the confirmation of the president's chosen nominee. And there were some things I liked about Miers: I do believe that it would be a good thing to have a Justice who has practiced law at the trial-court level.

The Confirmation Standard

I started off with three big-picture questions about Miers, and five more specific concerns. The three big picture questions:

A. Do I believe Miers would be a good Justice in terms of things like legal skill, proper attention to relevant detail, and understanding of the need for clarity?

B. Do I believe Miers would be acceptable to me as a conservative, in terms both of following an acceptable method of deciding cases and generally acceptable results?

C. How certain do I need to be of #1 and #2 to support the nominee?

(B, of course, is shorthand here - if I accept the nominee's philosophical/methodological approach, I'm willing to live with the possibility of some results that will make me unhappy. The more ad hoc or unpredictable the nominee's approach, by contrast, the more worried I get about particular cases).

Question C is the tough one, if you think seriously about the question of what role the Senate - and those of us who comment on these things, who can (once the nomination is made) only look at this from the perspective of what the Senate should do - should play in the confirmation process. On the one hand, the Senate's job is to decide if the nominee is acceptable and then vote on her - not argue over who might have made a better Justice. The president's choice is entitled to some deference, as he gets to choose. On the other hand, appointments to the Supreme Court are enormously important, mistakes are impossible to fix once confirmed and can have consequences reaching decades or centuries into the future, and there is one specific area - the president's choice of close personal friends - that warrants less deference, as it was a particular item of concern to the Founding Fathers. In light of that concern, I believe more scrutiny is required of Miers' qualifications than would be the case if she were not a close personal friend of the president.

As to ideology, my feeling all along has been that presidents are entitled - indeed, obligated, if you take seriously the idea that legitimacy flows from the people's approval of the principled positions taken during an election campaign - to nominate Supreme Court Justices who are consistent with the publicly declared philosophy of the president, and the Senate is justified in rejecting nominees on ideological grounds only if the nominee is far out of whack with what the people were entitled to expect from the president they elected. To give an example, Bill Clinton ran as essentially a social liberal - as far as the issues that are decided by courts are concerned - but with one significant exception, that being that Clinton supported the death penalty. There were a number of Supreme Court Justices in the late 80s/early 90s - I believe Brennan, Blackmun and Marshall all did this - who made a practice of voting to overturn all death sentences, to the point of dissenting from the Court's orders denying certiorari in each and every death penalty case not taken by the Court. Clinton was entitled to appoint liberal Justices, as he did, and as were confirmed by the Senate with significant Republican support. But I do think the Senate would have been justified in rejecting a Clinton nominee who was, in the Brennan mold, a doctrinaire, no-exceptions opponent of the death penalty, because that would have been out of step with the philosophy the president campaigned on.

In Bush's case, he unquestionably campaigned and has promoted himself in office as a social conservative - pro-life, anti-same-sex-marriage, in favor of an expanded role for religion in public life. He has also campaigned and governed, at least in terms of stated philosophy, as an economic conservative. There is no justification for rejecting a Bush nominee on grounds that the nominee appears to be pro-life or pro-business. And Bush touted his belief that he admired Justices Scalia and Thomas; thus the Senate should have no grounds for rejecting a nominee in that mold. On the other hand, a nominee who was a genuinely radical small-government conservative or libertarian - i.e., someone who wanted to bring back the rule of Lochner under which the courts make substantive judgments about economic regulations - might legitimately be rejected as out of the mainstream of the Republican party and the president who leads it. This is why I think that, of the frequently discussed potential nominees, Janice Rogers Brown is the only one who might legitimately be voted down on ideological grounds (although I understand the argument that the charges against her are overstated; I'm speaking hypothetically here).

The flip side of that is that the president's own supporters do have an obligation, I believe, to reject a nominee who is dramatically inconsistent, in terms of judicial philosophy, with the president's own stated philosophy. And that has been a big concern with Harriet Miers.

The Trouble With Harriet

Turning to specific questions about Miers, I've raised a number of concerns about her - click here and scroll down. These boil down to five more specific questions:

1. Does her lack of grounding in constitutional law and theory, taken together with what we know of her temperament, indicate that she will drift from her moorings once on the Court?

I'm inclined to give Bush some benefit of the doubt on the temperament issue, as he knows her well, but the lack of experience with constitutional law worries me, and worries me all the moreso as she seems to be fumbling her way through meetings with senators and botching her questionnaire by giving, at best, opaque answers about constitutional subjects. As I've explained here, and as Justices Scalia and Rehnquist explained here, while we certainly do not need nine constitutional law professors on the Court, it is simply not acceptable to have a Justice who is a completely blank slate as far as her experience with the constitution. In fact, this goes to Question C above: with John Roberts, even though we had to take on faith to some extent his philosophy of judging and of the constitution, there was no doubt from his resume and experiences that he had had more than ample time and opportunity to think deeply about those issues, and thus the likelihood is much less that he would find himself adrift (or overwhelmed, like Lewis Powell) once on the Court.

And yes, this ties into the question of ideology. A Justice who is a known quantity, to herself and to the world, is far more likely to be predictable in how she approaches the law, and conservatives have labored too long and too hard to reclaim the judiciary on behalf of pro-democracy judges to entrust the job to a complete cipher.

2. Does she understand the body of constitutional law well enough to anticipate how the drafting of her opinions will affect cases not before the Court?

I've covered this point before. To use a football analogy, I want a Justice who can see the whole field, not a hedgehog who burrows into one narrow issue and loses track of how it fits into or affects the next case. I'm deeply skeptical that Miers has the breadth of understanding to do this.

An example of what I'm talking about is a specific case I've blogged about before here, and which is on this term's docket: FAIR v. Rumsfeld, the Solomon Amendment case. The case will determine whether the lower court properly issued a preliminarily injunction against the enforcement of the policy of denying federal funds to universities that do not allow military recruiters equal access to that provided to civilian employers. Just in this one case, we have issues of the proper standard applied to compelled speech, freedom of association (the Third Circuit claimed that its decision in favor of the law schools was compelled by the decision holding that the Boy Scouts couldn't be forced to hire gay scoutmasters) and the role of academic freedom, which the Court has treated very inconsistently (recall the distinction between the VMI case and the Michigan affirmative action cases); to what extent the War on Terror makes military recruiting a compelling public interest; to what extent the Court should defer to legislative judgments about the needs of military recruiters; and whether Congress can do indirectly through the Spending clause what it might not be able to do directly, as well as whether the particular program is rationally related to the spending at issue. (This is aside from the procedural issues like standing and the standard applied to an appeal from an order denying a preliminary injunction). And that's just one case. We need Justices who can not only resolve a case like this but do so in a way that makes more rather than less sense of the existing constitutional framework of these various doctrines. And this leads us to my third question, the one that is the deal-breaker.

3. Does she have the intellect and writing chops to understand the torrent of complex issues the Court needs to resolve and produce clear opinions that lay down workable rules of law?

Here's what I, as a practicing lawyer, want, as far as qualification and competence: a brilliant or, at least, a clear and incisive legal mind, someone who can grasp the many, varied and often complex issues - constitutional and statutory - that come before the Court. I want someone who can write opinions that are internally coherent, make sense, and reduce rather than multiply litigation over their application. I want a Justice who can consider and reject the best arguments against the Court's ultimate disposition, rather than dodge, sweep aside or leave unsettled alternative arguments for the opposite outcome. I want someone who understands that, because the Court takes but a small fraction of the cases raising a particular legal principle and sometimes takes years to revisit an issue, the Court's job is to settle unsettled questions of law.

Now, when we are discussing Miers' qualifications, it is sometimes objected that critics of Miers are being elitist. But let us make one thing perfectly clear: I'm not looking principally for credentials, I'm looking for skills and a base of substantive knowledge. The credentials are just markers that help us determine how sure we are that the nominee has the skills needed to do the job. As I've discussed before, no one of Miers' credentials, or omissions from her credentials, is the problem; the problem is that taken as a whole, her experiences provide no guarantee that she possesses the necessary intellect and the ability to write with clarity and decisiveness sufficient to give meaningful guidance to litigants and lower courts.

The bottom line with any Supreme Court justice is how they vote on the issues before the High Court. It would be nice to have someone with ringing rhetoric and dazzling intellectual firepower. But the bottom line is how they vote. If the President is right about Harriet Miers, she may be the best choice he could make under the circumstances.

Miers is headed for SCOTUS, guaranteeing decades of anguished posts by members of the Bos-Wash Axis of Elitism on why her votes don't count as much as their long ago criticisms.

I understand full well the desire to get the votes we want on our side. But the Supreme Court is about more than just votes. This is not the House of Representatives, where you just shut up and vote; it's about the Court's written opinions. Of course, writing style and ability matters. Because words are the Justices' only weapons.

The Supreme Court decides, if I recall correctly, something like 90 cases a year. Most of those cases, standing alone, don't matter much to the rest of us - who cares if Norma McCorvey couldn't get an abortion, or Jennifer Gratz couldn't get into Michigan Law School? With the exception of the occasional Bush v. Gore, Watergate or Pentagon Papers case, the Court's decisions matter because of the way its opinions govern the thousands of similar cases that don't come before the Court. And the way in which the opinions are written matters very much to how broadly or narrowly the Court's decisions are written, or whether those decisions are persuasive to future Justices. So yes, Miers' writing style is in fact an essential job requirement.

Now, like the questions about Miers' knowledge of constitutional law and her judicial philosophy, my initial inclination was to wait and see. We knew that Miers had been a successful commercial litigator, and many (though not all) successful commercial litigators are indeed brilliant and persuasive writers. So, I've been waiting on the evidence.

I've finally reached the point where I can wait no more. First, we saw that Miers had a fairly thin record (see here and here) of actually litigating, on appeal or to other published dispositions, cases raising the kind of issues that I and other lawyers grapple with on a much more regular basis. I don't care that she hasn't tried a ton of cases, a point Beldar has aptly rebutted, but the notion that Miers has been out there litigating cutting-edge legal issues as her bread-and-butter for years and years seems inconsistent with her record.

And there was also the issue of the near-complete absence of observers who could testify with any kind of superlatives to Miers' intellect and writing. Just look at Beldar's glowing assessment of two of his mentors in practice. I can certainly think of lawyers I've worked with and observed that I'd describe in similar terms. And there was no shortage of people willing to step up and not only say, but say with extensive supporting specific examples, that John Roberts was a man of great intellect and talent, a clear and persuasive advocate. By contrast, Miers' defenders (see also here) always seem to describe her as "competent" or "well-prepared" or "ethical" - all wonderful qualities in a lawyer, but they keep leaving me wondering, is this the best anyone can say? And aren't there hundreds, maybe thousands of practicing lawyers about whom you could much more easily find judges, colleagues and even opposing counsel to speak in far more glowing terms? (Where are Miers' old partners in this? We've hardly heard a peep from anyone who knows her work really well other than Nathan Hecht).

Then, we started to get a glimpse of Miers' actual writings, discussed here. And that was the last straw. Maybe it's just that I have very high standards, but as I've said before, I've encountered successful lawyers before who just weren't clear and persuasive writers, or who were sloppy thinkers and interpreters of the law. And so far, everything we've seen of Miers' writings suggests that the woman simply is not the kind of writer I would consider a good summer associate at my law firm, let alone a Supreme Court Justice. And that can't stand. The Court is too important to the system of justice to let someone in the door who lacks the minimal competence to do the core part of the job: explaining the law.

In short, I can no longer maintain anything but the most hypothetical hope that she would blossom into, say, another Clarence Thomas on the bench. The evidence is now clear that Harriet Miers would be, at best, a good follower on the Court, a person who brings some practical perspectives to some of the issues before the Court, but exacts a price in the quality of the opinions she would write and - as happens with these things, when opinions must meet the approval of all the Justices who join them - perhaps in the quality of opinions she would agree to join as well.

(And for those of you who compare her to Bush: don't. Verbal intelligence and the ability to write persuasively are not essential job requirements of the presidency. They are essential job requirements for the Court. The president can order soldiers into battle, and they will go. When the Court says "jump!" nobody jumps unless it is clear what they are being told to do and how high to go. Written opinions are the only soldiers the Court has at its disposal.)

4. Is Miers too close to Bush to rule against his Administration when - as all governments are wont to do, even good ones - it exceeds its legitimate authority under the Constitution?

5. Will Miers have to recuse herself in too many cases?

I'll skip over these questions because I came to my conclusion based mainly on the evidence of her qualifications for the job. But these are also legitimate issues with Miers, especially #4, and I will no doubt return to them as we go along.

You will note what I have not even discussed here: the politics of the nomination and the consequences of rejecting Miers. Yes, those are important. But Miers simply does not meet the minimal standards for confirmation to the Court. And as a practicing lawyer who will have to live with the consequences of this nominee if she is confirmed, I can't support that, no matter what the judge's party affiliation or her presumed ideology. President Bush should withdraw this nomination. And if he doesn't, the Senate should vote NO.

For what it's worth, the Pythagorean record of both the White Sox and Astros this season was 91-71.

While I was rooting for Houston, I must say my one disappointment from the NLCS was missing the chance to see two first place teams in the World Series for the first time in four years. In the past 9 seasons we've had 7 Wild Card teams in the Series, which just feels like too much, especially given that only one of those teams - the 2000 Mets - lost the series to a first-place team. Overall, Wild Card teams are 24-17 in postseason serieses dating back to 1995, and that just doesn't seem right.

The Times Co. said yesterday its Boston paper's weekday circulation plunged by nearly 8 percent over the past six months compared to last year - dropping 35,000 copies to 416,000, despite heavy marketing and steep price discounts offered by the newspaper.

Via RedHot. To be fair, this time last year, the hometown Red Sox were marching to the World Championship and hometown Senator John Kerry was in the heat of the presidential election. On the latter story, at least, for all its biases, the Globe did break national news a number of times. It's hard to replicate those conditions every year.

Beldar offers up, as a sample of Harriet Miers' persuasive writing, a letter she wrote to George W. Bush (when he was governor of Texas) urging him to veto legislation that would prevent the newly Republican-controlled courts from regulating attorneys' fees, specifically those charged by the plaintiffs' bar in contingency-fee cases. I agree wholeheartedly with Patterico that this is another unencouraging sign (to say the least) about Miers' writing abilities. Check out the last two full paragraphs:

The passage of this proposed law squarely raises the issue of the special interest laws [sic] for the benefit of those who have the wealth and power to cause to be passed self-protective legislation. What possible justification can exist for this law? There may be attempts to explain or provide justification. Those of us who are knowledgeable about the legal community know that this law is a special interest bill to protect from legitimate scrutiny and regulation individuals in our state perceived to wield power and influence.

I respectfully suggest that this law should be vetoed. It is bad, indefensible policy. Additionally, I feel confident it will never work and those involved in its promulgation will be smeared with legitimate criticism for a blatant attempt to shield, protect and curry favor with interests that have brought shame on this state, badly hurt our economic development efforts directed at creating jobs and continue to this day to cause our state to be held in disrepute for "justice for sale."

Where to begin? Leave aside the grammatical disaster that is the phrase, "[t]he passage of this proposed law squarely raises the issue of the special interest laws . . . " We have the mealy-mouthed phrase "those who have the wealth and power to cause to be passed self-protective legislation," rather than coming right out and saying, in a declarative sentence, "the contingency fee bar" or some such clear descriptive phrase. Then, having gone not nearly far enough, Miers backtracks: those who, two short sentences earlier, could be confidently asserted to "have the wealth and power to cause to be passed self-protective legislation" are suddenly only "perceived to wield power and influence." And while the bill will, for reasons unstated, "never work" (at what? Miers does describe some specific bad effects earlier in the letter, but never addresses the bill's actual stated purpose, and seems to assume that it actually will work at the purpose of benefitting people with actual or perceived power or influence), it nonetheless will, at some future date, "continue to this day" (in the future? or are we in Doc Brown's DeLorean now? actually, it's the "interests" that "continue to this day" to do bad things, but that connection is lost in Miers' tortured syntax) to cause the bill's proponents to be "smeared with legitimate criticism" (!!).

David Brooks' grim assessment of Miers' writings as the head of the Texas Bar were bad enough, but one can understand that a bar association president's job is to say nothing, and most rational people wouldn't put much effort into writing those letters. But this was an attempt to persuade the governor of the state to veto a bill, and yet we get instead this train wreck of euphemisms, tortured grammar, and laughable solecisms. I do not look forward to spending the rest of my professional career reading opinions like this, and this sort of thing pushes me one step closer to throwing my lot in 100% with the anti-Miers forces.

Either way, should be a novelty. The Astros led the NL in ERA this season; the White Sox were second in the AL. The lesson: never underestimate teams with outstanding frontline starting pitching in the postseason.

No sooner had [former] Senators [Connie] Mack and [John] Breaux unleashed their ideas on making the federal tax code more simple and fair than Senator Schumer unsheathed his rusty old dagger, describing the idea of eliminating the federal deduction for state and local taxes as "a dagger to the heart of the people of New York." Voters might be inclined to listen -- except for the fact that Mr. Schumer sees a dagger virtually everywhere he looks.

A 2003 plan for flexible work schedules instead of overtime? "A dagger to the heart of the middle class," Mr. Schumer said, according to the Associated Press. A 2002 plan by federal regulators to urge Wall Street firms to establish backup facilities outside New York City? A "dagger pointed at the heart of New York," Mr. Schumer said, according to the Daily News. High gas prices? "A dagger at the heart of our economy," Mr. Schumer said in 2000, according to the New York Times. A unilateral declaration of Palestinian statehood would be "a dagger through the heart of the peace process," Mr. Schumer said in 2000, according to the Agence France Presse.

Hate crimes "put a dagger in the heart of what America is all about," Mr. Schumer said in 1999, according to USA Today. A proposal to change the federal transportation funding formula was "a dagger pointed at" New York and California, Mr. Schumer said in 1999, according to the Washington Post. School vouchers? "Daggers that plunge into the heart of what is the American way," Mr. Schumer said in May 1999, according to the New York Post. Cuts in federal student aid? "A dagger to New York's college students," Mr. Schumer told Newsday in 1995.

Not to put too fine a point on it, but Mr. Schumer sees daggers more often than a four-eyed knife thrower looking through a kaleidoscope.

*The now ironically named ConfirmThem makes a point I had thought about with regard to Paul Mirengoff's post on how the Democrats could filibuster Harriet Miers if, in an effort to rebuild her support on the Right, she makes clear that she would vote to overturn Roe v. Wade:

The prospect of this nomination triggering a debate on the nuclear option is perhaps the worst possible scenario for the White House. There could have been no other reason to select Harriet Miers other than to guarantee easy passage of a relatively unknown (stealth) candidate, thus avoiding a messy scene in the US Senate. But if a substantial number of Democrats decide, for whatever reason, to oppose this nomination, then not only would the administration have the fight it so desperately tried to avoid, it would have a fight without the support of much of its base.

Now, personally, as I've argued before, I don't have a problem with filibusters of judicial or executive nominees per se; my objection is to open-ended, indefinite filibusters designed to prevent a vote once it's clear that the nominee has the votes to be confirmed. But if the GOP allows such a filibuster of Miers, the Democrats will have a precedent they can point to in the future. Thus, it will be imperative for Republicans to overcome any filibuster of Miers, for the sake of future nominees and - yes - even for the sake of the power of future presidents, Republican and Democrat alike. But by staging such a battle in favor of a weak and unpopular nominee is the worst possible political ground to fight on.

*The business community likes Miers. (Via NRO). I can tell you two related reasons why business groups don't necessarily want another Scalia or, especially, another Thomas. One, business has been thrilled with the Court's imposition of constitutional limitations on state court punitive damage awards. Scalia and Thomas have both dissented from the Court's precarious majority on that issue (personally, I find much more compelling the rule against punitive damage awards based on out-of-state business operations, for reasons discussed here). Two, Thomas is also a regular dissenter from decisions on the Dormant Commerce Clause, which is often used to strike down local protectionist legislation and other hindrances on nationwide business operations. On this latter front, I think Thomas is fighting a pointless and lonely struggle against a doctrine announced in 1824 by John Marshall, but he does have his reasons. Many business leaders don't want a Justice who will revisit the constitutional foundations of some of these decisions.

*Thinking out loud here on another issue that may come up, but I'm not sure it has any weight to it. Presumably, a Justice who was married to a lower court judge would have to recuse herself from cases in which he had issued a ruling, no? Doesn't that suggest - and believe me, I'd really rather not go there - that whether Miers would have to recuse herself from cases on which Justice Nathan Hecht of the Texas Supreme Court had ruled would depend on the nature of their relationship, which seems to be at least semi-romantic but which was, until now, very properly nobody else's business? (This is of a particular concern because the number of death penalty cases coming to SCOTUS from the Texas Supreme Court is non-trivial.)

*Beldar explains why Miers' 1995 effort to block legislation over lawyer fee awards, on separation of powers grounds, was reasonable; the short answer is that lawyer fee awards, unlike many other subjects of judicial lawmaking, really are naturally subject to the plenary regulation of the judiciary by virtue of the judiciary's inherent authority to regulate the ethical practice of the bar. That doesn't mean a legislature should never intervene in those issues, but it's not judicial activism to view the discipline of lawyers as the juduciary's job in the first instance.

Grover Norquist, head of Americans for Tax Reform and host of the other meeting, declined to comment on the discussion because of its presumption of confidentiality but said there is widespread concern given the experience with the nomination of Justice David H. Souter, who proved more liberal once on the bench.

When he joined the court 15 years ago, Souter was touted as a sure bet for conservatives.

Since then, however, he's been vilified as a traitor and closet liberal, more likely to align himself with swing voters like Sandra Day O'Connor than conservatives like Antonin Scalia.

(Via Stuart Buck). Would it kill these people to just come out and say that Souter has actually voted as a liberal? That he votes very consistently with the Court's liberal bloc? Of O'Connor and Kennedy, you could say that they proved "more liberal" (or "less conservative") or were/are "swing" voters. Souter, like Blackmun, is the genuine article, a guy who has sided with the Court's liberals on nearly every major decision that offered a left/right split. Are Scalia and Thomas conservative? Yes they are, and news accounts properly describe them as such. But actually saying "David Souter is a liberal" is apparently a bridge too far.

Fix reason firmly in her seat, and call to her tribunal every fact, every opinion. Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason, than that of blindfolded fear. You will naturally examine, first, the religion of your own country. Read the Bible, then, as you would Livy or Tacitus. . . Those facts in the Bible which contradict the laws of nature, must be examined with more care, and under a variety of faces. . . I forgot to observe, when speaking of the New Testament, that you should read all the histories of Christ, as well as of those whom a council of ecclesiastics have decided for us, to be Pseudo-Evangelists, as those they named Evangelists.

This is another pet peeve of mine. Hitchens quotes this passage as if it were self-evident that reason and skepticism must lead to atheism or agnosticism, and as if mature adults must retain a permanent posture of skeptical uncertainty towards the existence of God. There's nothing wrong with, and much to be said for, taking a hard look at some point at the things we take on faith. But at some point in life, you have to make decisions and commitments; you can't hide forever behind an attitude of permanent uncertainty (as Neal Peart put it, "if you choose not to decide, you still have made a choice"). Hitchens is speaking of Harriet Miers, but who is to say that Miers has not given her faith a skeptical re-examination? After all, she left the Catholic Church to join a new denomination, a more radical break than most people experience. The fact that Miers made a decision about her faith does not necessarily mean that decision was unexamined.

*Powerline has the text of a motion to dismiss the second indictment of Tom DeLay. It certainly sounds like DeLay has valid grounds to dismiss the indictment, on the basis of the statutes at issue not covering his conduct and, possibly, improper venue. (There's no shame in being acquitted on technicalities when you are charged with a technical offense in the first place). But then, criminal defense attorneys often make arguments that sound persuasive until you see what the facts or law really are; I don't know enough about the Texas statutes in question to know if this holds water.

*Jeff Goldstein notes the massive allocation of resources to arrests for marijuana possession. I'm generally - if somewhat weakly - in favor of criminalization of marijuana (in part on a broken-windows theory), but the problem with enforcing the law against pot is that you end up with a choice between (1) using vast resources better spent elsewhere or (2) enforcing the law in an arbitrary manner (and as we all know, a law arbitrarily enforced is far more susceptible to being a law discriminatorily enforced). This is one reason why I think the federal government, at least, should get out of the pot-busting business and leave to local governments the decision of what resources to allocate to this area.

Man, what a back-breaking ending to the Astros' hopes of putting away their first pennant last night. That was, if possible, a tougher ending than the Notre Dame-USC game on Saturday, which is saying quite a lot. Roger Clemens, sitting in the Houston dugout, had a distinct "I've seen this movie before and I don't like how it ends" look on his face. The home run itself was as impressive as its context, like George Brett's homer off Goose Gossage in 1980; that's what happens when a guy as strong as Pujols makes soldi contact off a guy who throws as hard as Brad Lidge.

Pujols is one of those guys you have to take in while he's in his prime, because we'll be telling stories about this one for years. As I noted after last season, baseball-reference.com not only says that the most similar player at the same age is Joe DiMaggio, but that the most similar player at the same age to Joe D is Pujols. That's amazing. In fact, Pujols is a better hitter, if you adjust for the fact that the late-30s AL was even higher scoring than today . . . DiMaggio was still better because of his glove, though; in fact, a good modern analogy for DiMaggio is a guy who hits like Pujols and plays center field like Andruw Jones.

(By the way, I noticed that George and Barbara Bush stayed through the bitter end again last night at Minute Maid, like Giuliani at Yankee Stadium. One of the benefits of being a retired politician is you get to stay for the whole game.)

Professional baseball player Mario Encarnacion of the Dominican Republic was found dead yesterday morning in his dormitory. The cause of death is not yet known pending an autopsy, but investigators said his room had not been broken into and that a post-mortem examination found no signs of external injury.

Encarnacion played with the Chinese Professional Baseball League's (CPBL) Macoto Cobras.

At a press conference held yesterday afternoon, CPBL secretary-general Lee Wen-ping said, "Encarnacion failed to pass a steroids exam in May and he was suspended from playing games for two weeks."

Lee said Encarnacion explained to the league that he had taken weight-loss medicine which may have contained steroids. Encarnacion was worried that his weight was affecting his performance.

But Lee warned the media not to jump to conclusions.

"Before prosecutors finish an investigation, please do not suspect that his death was related to him taking medicines prohibited by the league," Lee said.

Investigators said an autopsy would be conducted in a few days to determine the cause of death.

A Cobras coach, Lu Ming-shih, told reporters the team believed Encarnacion's death might be related to gastroenteritis, which he had suffered from for a long time.

Well, anyone who predicted before the season that the Chicago White Sox would win the American League pennant, stand up and take a bow. My own Established Win Shares Levels system was very mildly optimistic before I adjusted for age, picking the Sox as the best of a bad lot in the AL Central, but the final age-adjusted numbers had them in second place at 78-84. More on that later. The Sox are, of course, yet another testimony to what you can accomplish in the postseason with good starting pitching.

One guy who has to be kicking himself now is Shingo Takatsu. Takatsu, himself a famously dominant postseason performer in Japan, was lights-out as the White Sox closer in 2004, and opened 2005 not only as the closer but as one of the team's strengths. By the end of the season, he was in the Mets' reclamation heap with Danny Graves, hanging on to any kind of a major league job.

As for last night's game, I have to wonder whether the umps would have upheld the original call in favor of the Angels in that disputed play at first base if Kelvim Escobar had sold it better - the fact that Escobar made a throw after tagging Pierzynski killed any chance the Angels had of claiming with a straight face that he had made the tag.

I can't think of any major league ballplayer who did more in 2005 to help his chances of possibly making the Hall of Fame someday than Andy Pettitte (and yes, if you're clicking the link, baseball-reference.com now has the 2005 stats up). Entering 2004, Pettitte was a guy who'd racked up an impressive number of career wins (regular season and postseason) through age 31, but had never pitched away from the Yankees, had posted an unspectacular-looking 3.94 career ERA, and always seemed to be on the verge of an arm injury that would derail his career. In 2004, Pettitte played down to those expectations, losing half the season (including the Astros' magical playoff run) to an injury.

So, this season's comeback of 17 wins, a career-low 2.39 ERA, and 222.1 injury-free innings, and some solid postseason starts has done wonders for Pettitte's credentials. With 172 wins through age 33, Pettitte has a plausible outside shot at 300 wins and a pretty good shot at 250; he has just 5 fewer victories than John Smoltz and 20 fewer than Curt Schilling, both of whom are 5 years older (granted, Pedro Martinez, who is the same age as Pettitte, has 27 more wins, but you don't have to be Pedro to make the Hall of Fame). Better yet, Pettitte started, in 2001, transitioning to a top-notch control pitcher, but this was the first time since then that he was able to sustain that kind of control record (1.66 BB/9) over a full season without getting tagged for a very high number of hits (1997 was the only year of Pettitte's Yankees career that he allowed less than a hit per inning). The ability to throw a lot of strikes without getting totally shelled is something that will serve Pettitte well in his 30s.

Predicting where Pettitte goes from here is another matter. Baseball-reference.com's list of similar pitchers through age 33 is loaded with active and recent pitchers: Mike Mussina and Jimmy Key are the two guys over 900 in similarity scores, and Kevin Brown is on the list as well. There are two Hall of Famers on the list, at #9 and 10: Warren Spahn and Lefty Gomez, neither of whom really had a similar career, although both - like Pettitte - pitched in pitchers' parks in high-scoring eras for powerhouse offensive teams most of their careers. Tommy Bridges, pitching hero of the 1935 World Series, is perhaps a better comparison, but pitcher career paths are notoriously hard to compare anywyay.

As reported by Friday's Wall Street Journal ($), the new Arab-language version of The Simpsons sounds more like a parody of Arab cultural hypersensitivity:

"Omar Shamshoon," as he is called on the show, looks like the same Homer Simpson, but he has given up beer and bacon, which are both against Islam, and he no longer hangs out at "seedy bars with bums and lowlifes." In Arabia, Homer's beer is soda, and his hot dogs are barbequed Egyptian beef sausages. And the donut-shaped snacks he gobbles are the traditional Arab cookies called kahk.

A teetotaling Homer Simpson pretty much misses the point. The article doesn't mention the fate of Ned Flanders and the show's occasional scenes in a Christian church, which are presumably even more problematic than Moe's.

[M]y impression is that the proportion of our population that consumes either wine or brie, or both together, has gone up since [1997] . . . Hasn't the insult lost its bite? I thought of this when I read a crack against elites that mentioned bottled water. It sure seems as though drinking bottled water has ceased to be an elite activity. Back in 1997, conservatives could mock latte towns--but you can find latte in any town you're in nowadays. Conclusion: We need some new put-downs. (Confession: I like brie and wine, have occasionally had a latte, and buy bottled water for my family--but that last point reflects the high lead content in D.C. water rather than a preference on my part.)

At least as to the bottled water thing, Ramesh is right on. Most of us have an instinctive belief that paying good money for water in a bottle is ridiculous. And yet, if you live in a city like New York or Washington (or Worcester, Mass., where I went to college and where the tap water was brown), where drinking the tap water is not a sane option, bottled water has become a necessity - and all the moreso after September 11 and especially after Katrina, when bottled water has become an emblem of disaster preparedness.

(As for wine, I believe recent surveys have shown that Americans as a whole now drink more wine than beer.)

As always, good to have visitors from Bill Simmons' place stopping by. Unfortunately, I've been too busy with work to post anything substantive the last few days . . . For those of you who are dropping by for the first time, look around; there's a lot of stuff here going back five years. This site covers politics, war, the law, pop culture and various other stuff; while I usually do more baseball during the playoffs, I've been writing a lot the last two weeks about the Supreme Court. You can hit the link at the top to just view the baseball posts.

A judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law. As then-Justice Rehnquist observed of our own Court: "Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers." Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. "Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias." [Quoting same Rehnquist opinion] The Minnesota Constitution positively forbids the selection to courts of general jurisdiction of judges who are impartial in the sense of having no views on the law. Minn. Const., Art. VI, Sec. 5 ("Judges of the supreme court, the court of appeals and the district court shall be learned in the law"). [A]voiding judicial preconceptions on legal issues is neither possible nor desirable . . .

Grumpy Old Sportswriter: Not that I've read the book. That would be wrong.

Me: Of course.

Grumpy Old Sportswriter: But him and his number-crunching friends don't understand baseball. You know how you can tell that? Because his teams don't win in the playoffs. The playoffs are the real thing. That's what separates the men from the boys.

Me: So, who's the best GM?

Grumpy Old Sportswriter: John Schuerholz. The Braves are the anti-Moneyball team. That's how you run a major league organization. Old school, my friend.

The portrait of Harriet Miers emerging from interviews with her friends and colleagues in Texas is largely a consistent one. She is universally regarded as bright, hard-working and remarkably gracious. But she also clearly has a steep learning curve when it comes to serving on the Supreme Court.

Bruce Packard worked with Ms. Miers as a partner at the Dallas firm of Locke Liddell & Sapp for a dozen years from 1985 to 1997. He calls Ms. Miers is a "very good moral person," but says her real skills at the firm were networking and climbing the rungs of the local and state bar association hierarchy. She rarely tried cases and most of her work for corporations was to serve as the local counsel for out-of-state companies that needed someone familiar with local Dallas judges.

(Emphasis added). Hopefully, we'll get a fuller picture of what Miers' record in private practice really was. If I can be convinced that Miers was a genuinely outstanding commercial litigator, skilled in evaluating and presenting legal arguments and learned in the law governing her areas of practice, I can at least consider supporting her for the Court. That case remains unmade.

UPDATE: In Wednesday's Political Diary, Fund says again that "Ms. Miers has real-world experience serving as local counsel for such corporate clients as Microsoft and the Walt Disney Company." For those of you unfamiliar with the concept, if, say, a New York law firm wants to represent Microsoft in a Texas court, and the lawyers representing the company aren't admitted to the Texas bar, Microsoft still needs to hire lawyers who are members of the Texas bar - "local counsel" - to appear with them in court, even if the Texas lawyers do little besides greet the judge, sign papers drafted in New York, and receive service of court papers (this is not limited to Texas - nearly all states have such requirements, and in fact, one subject Miers has written on extensively and substantively is multi-jurisdictional law practice). On the other hand, (1) some non-lawyers might use the term to refer to Microsoft's regular lawyers in Texas, and (2) local counsel sometimes has a much more active role, including handling arguments and trying the case with just some background assistance from out of town lawyers.

To me, the question of what Miers' role was in cases where she appeared on the pleadings on behalf of Microsoft and Disney is hugely important. Beldar's review of published opinions in cases where Miers was named as counsel places very heavy emphasis on her representation of Microsoft and Disney to show that she had a top-flight commercial practice involving her in complex questions of law. I have asked whether those cases were typical of her practice. But if it turns out that even on those cases she was largely just signing papers drafted by out-of-state lawyers, that would severely undercut Beldar's case for Miers having a distinguished record litigating complex and sophisticated legal issues.

Most of the cases the Supreme Court nominee handled were settled before they went to trial, her former law partners say. Those colleagues and lawyers who opposed her remember Miers for her preparation and attention to detail.

[snip]

Her biggest case may have been her successful fight to spare Microsoft from class-action lawsuits over an alleged defect in one of its computer operating systems.

Plaintiff lawyers persuaded a state district court judge in 1995 and an appeals court to certify lawsuits against the company as a class-action matter. Up to 11 million consumers around the country could have joined in one massive lawsuit against the software giant, according to lawyer Jerry Clements, who worked under Miers on the case.

Miers went back to the original judge and argued that recent court decisions meant that complaints against Microsoft didn't merit class-action status. The judge reversed herself. Anyone claiming damage would have to sue Microsoft on his own - a costly undertaking. Later, the case was dismissed.

"That was the beginning of a pretty significant trend in Texas that moved away from the state being a good place for class actions," Clements said.

Miers lost cases, too. In 1988, she defended a firm led by a prominent Hong Kong investor who had backed out of a deal to invest $5 million to buy a Dallas office building. One of the other investors, Bear Stearns Cos., tried to cash the Hong Kong firm's letter of credit.

A federal judge sided with Bear Stearns, but Miers persuaded the 5th U.S. Circuit Court of Appeals to give her client another chance at a trial, according to Lewis LeClair, one of Bear Stearns' lawyers.

"I really thought I had the case won until she showed up, and then I found myself playing defense for a long time," LeClair said. Although Bear Stearns won in the end, "she did an excellent job with a very difficult case," he said.

[snip]

Joe B. Harrison, an attorney who opposed her in a 1998 case, remembers Miers as "well-prepared and competent and ethical and responsible."

[snip]

During the 2000 presidential campaign, Miers defended Bush and running mate Dick Cheney against a lawsuit claiming that Texas representatives to the Electoral College couldn't vote for the Republican ticket.

The Constitution forbids electors from voting for a president and a vice president if all are from the same state. Cheney had lived in Dallas for five years and returned to Wyoming only after joining the ticket. Miers argued that the Texas residents who brought the lawsuit didn't have standing to sue.

The appeals judges hearing the case later decided that Cheney was indeed a Wyoming resident. The opposing lawyer, Charles W. McGarry, said Miers focused on a narrow procedural issue but did a competent job.

"She was the go-to lawyer for Republicans," McGarry said.

A lot of mild praise there - "competent," "well-prepared." I don't think we'll hear the kind of adjectives we heard from observers of John Roberts as an advocate, but we shall see. Overall, a small data point in Miers' favor.

For the moment, neither. As should be clear from my posts on this issue, I've been disappointed in the nomination, and I have serious concerns that might lead me to join the growing coalition of pundits and bloggers calling for the withdrawal or defeat of her nomination. But I could still be convinced that she has the right stuff to be a good Supreme Court Justice. For the moment, count me among the "show me" coalition.

Is Miers an unqualified hack?

Don't be ridiculous. Go read Beldar, who has been leading the effort to get the facts out in defense of Miers. This isn't Michael Brown here; Miers is a tremendously accomplished person. She had a long and successful career as a commercial litigator, representing numerous blue-chip clients and eventually being elected the managing partner of a 200+ lawyer firm and seeing it through a merger with another firm of similar size (Beldar well explains what this involves). She was also the president of the State Bar of Texas; as Beldar points out, membership in the State Bar is mandatory in Texas, and the bar and its presidency is a big deal within the state, even aside from the role it gave Miers in the ABA. And, of course, she's been a close advisor to the president for five years and White House Counsel for the past year. The staff secretary and White House Counsel jobs may not be glamorous, but they involve endless grueling hours; these are not jobs you give to a drinking buddy of the president. Miers' other experiences, heading the Texas Lottery Commission and being elected to the Dallas City Council, aren't big deals in political terms, but both involved real responsibility, and she juggled them while maintaining a full schedule as a practicing lawyer. And all this is particularly impressive when you consider that she was the first woman at her firm and, by all accounts, not someone who entered the profession with a lot of family or other connections.

So, yes, Miers has had an impressive career. She's hard-working and competent; she's unquestionably well-qualified to head a Cabinet department and clearly well-suited to be a district judge; and I wouldn't bat an eye if Bush appointed her to sit on a federal Court of Appeals. But the Supreme Court is different, and I do have real concerns that we haven't been given an adequate basis to conclude that Miers is qualified for a life-tenured position on a Court from which there is no appeal.

Aren't the objections to Miers just elitism?

First of all, if being an elitist means demanding excellence, I plead guilty. The "elitism" charge, to the extent it is backed up by any reasoning, comes from two quarters. Hugh Hewitt has argued that it's unnecessary to have Justices who have extensive constitutional law backgrounds, because Con Law isn't that hard; I address that below. And Beldar argues that people who sneer at Miers' resume are using an unduly constricted view of what experiences make up excellence in law practice - that there are plenty of great lawyers in private practice who didn't go to Harvard or Yale and haven't written law review articles.

I'd agree with that, in the abstract, but the debate here isn't about commercial litigators in the abstract, it's about one particular lawyer.

Let's make this clear:

I'm not bothered by the fact that Miers didn't go to an elite law school.

I'm not bothered by the fact that Miers didn't clerk for a prestigious judge.

I'm not bothered by the fact that Miers has never been a judge herself.

I'm not bothered by the fact that Miers has never written or said anything persuasive in public about the Constitution.

I'm not bothered by the fact that Miers has, as far as I can tell, spent the vast majority of her time over the past decade away from the courtroom, doing things besides litigation.

But I am bothered quite a bit by all of those facts when taken together, and it's hard to think of too many examples of good Justices about whom all of those things were true. That's the source of unease here about Miers' qualifications - it's not one thing, it's the whole package taken together.

Doesn't Miers' experience as a successful commercial litigator qualify her for the Supreme Court?

This has been one of Beldar's big themes, but I just can't agree with him. As a securities and commercial litigator myself, of course, I have great respect for the complexity of a lot of commercial practice. And as I've stressed before, having a Justice experienced in practicing law at the ground level is a great thing. But just saying that she was a success in private practice doesn't answer the core question about her qualifications.

Beldar quotes people saying Miers was/is a sharp lawyer, good with juries and cool before judges. But what kind of sharp lawyer? You see, there are really three distinct skill sets involved in being a successful commercial litigator - being a "law" person, able to spot legal weaknesses in an adversary's position, make sense of complex or conflicting caselaw and assemble clear and concise arguments; being a "fact" person, good with live witnesses and juries; and being a good negotiator, skilled with the give and take that makes up the discovery and settlement processes.

But there are certainly plenty of people who succeeed as litigators without mastering all three. Any lawyer can tell you that they've been in a case with lawyers - as adversaries or co-counsel - who had big names, long track records of success, and big bank accounts, and discovered that their briefs or their arguments in court were sloppily reasoned and poorly presented.

We know Miers is said to be a good "fact" lawyer; the president and others have marveled at her skills in deposing witnesses. And the fact that she was named managing partner of her firm strongly testifies to her skills as a negotiator. But what we lack is proof of her skill at the legal reasoning and persuasion. A major part of a Supreme Court Justice's job is persuasion - persuading other Justices, persuading lower courts (who will decide how broadly or narrowly to read an opinion), persuading future Justices deciding to extend or overrule precedents. Where's the beef?

If Miers had been a judge or academic (or blogger) for ten years, we could read her stuff for ourselves and judge. And if she was a brilliant appellate advocate like John Roberts, we'd be hearing the same stories we heard about Roberts: his brilliance at oral advocacy, his ability to grasp complex cases with minimal preparation time, examples of great arguments he presented. But the simple fact that she's won a handful of complicated cases in 30+ years and moved up the professional ladder isn't proof enough by itself. I'm waiting for more.

Ultimately, where Beldar and I disagree is that I believe that not all successful attorneys who are good at trying cases and taking depositions are necessarily, simply by that fact, cut out for work as an appellate judge, any more than every appellate specialist is cut out to try cases. The best people can do both, yes, but that doesn't mean the skills involved are automatically transferrable.

That's why I would ask if we can learn more about Miers' private practice. Has she handled a large number of cases presenting complex legal issues, like nationwide class actions or antitrust cases? Was she regarded by colleagues and peers as an expert in particular areas of the law - i.e., was she interested in doing the work of making sense of bodies of law and keeping up on them and how they play out in different fact settings, rather than just grabbing the cases that help your position in today's case and then going her merry way? We don't know.

Here's a fact for you: until this season, the only franchise to beat the Yankees in two consecutive postseason matchups was the New York Giants, who defeated them in the Yankees' first two World Series appearances in 1921 and 1922 (before the Yanks got revenge when Yankee Stadium opened in 1923). The Red Sox, Marlins, Diamondbacks, Indians, Mariners, Royals, Reds, Pirates and Braves have each beaten the Bronx Bombers just once in the postseason, and the teams that beat them twice each took at least one defeat in between: the Dodgers lost in 1977 and 1978 between the 1963 and 1981 World Serieses, and in 1956 between 1955 and 1963. The Cardinals lost in 1943 between the 1942 and 1964 Serieses, and lost in 1928 between the 1926 and 1942 Serieses.

Does it matter that Harriet Miers appears to have almost no record of experience litigating, adjudicating, or otherwise staking out positions on constitutional issues? I say it does.

First of all, the Court's role in deciding questions of constitutional law is hugely important, the most important part of its job. Yes, as a practicing lawyer I am well aware that constitutional issues are actually a minority of the questions on Court's docket, and that the Court's constitutional decisions are at least arguably not the part of the docket that directly affects the most people (although many areas of law that have broad-ranging impacts, like criminal law, election law, abortion and the effect of racial preferences on employment and educational opportunities, are shot through with constitutional questions).

Hugh Hewitt, who has been working as hard as he can to put back together the Humpty Dumpty of conservative support for Harriet Miers on the Supreme Court, argues that the thinness of Miers' experience as a constitutional lawyer is is not a problem:

The idea that Miers cannot go toe to toe with the giant brains on the Supreme Court is a very odd argument, on a number of fronts. It assumes that the business of judging is very difficult and that only scholars and intellectuals are suited to the task[.]

[snip]

The other argument is a subdivision of the "not smart enough" argument, and it suggests that even though she is smart, ConLaw played at its highest level requires a lifetime of practice, either in the classroom, the federal courts, or at least as an appellate litigator like the new chief justice.

From this I especially dissent. Simply put: It isn't that hard. It is wrong to argue that it is so. It is anti-democratic to argue that it is so. The Left wants you to believe it is so, and the center-right should resist that.

[snip]

ConLaw is a just another set of rules, vastly lengthier than those of golf or baseball, and subject to much more frequent changes, which is why they appear complicated to many observors.

[C]onstitutional law is a lot harder tha[n] . . . Hugh Hewitt will admit. It's easy to repeat platitudes about how a judge won't "legislate from the bench" or will just "follow the Constitution." But the hard part is sticking with those principles when they no longer comport with the results you really really want to reach.

To be fair, I agree with Hugh that Supreme Court Justices don't need to be academic super stars. But they do need to be reasonably self-aware. And my guess is that self-awareness tends to come most often from the experience of testing and evaluating arguments again and again, whether as a judge or in some other forum.

The question of how "hard" Con Law is in the abstract is besides the point. While I have my concerns - which I'll discuss separately - over what exactly Miers' career tells us about her facility with arguments about the law, we can agree that smart people can learn the ins and outs of each issue before the Court as it comes up based upon the briefs. Much of the work of the Court is done by law clerks with minimal experience, after all - but they're smart people, and they learn the stuff.

No, the core problem with appointing a Justice who is - as Miers appears to be - learning Constitutional Law on the fly is not that it's too hard to understand the issue at hand in a particular case. The problem, as Hugh should know from teaching Con Law, is that there are connections between the various areas of constitutional law, ways easy and difficult to foresee in which a decision on one question can affect decisions in other areas, whether in terms of substantive doctrine, overarching philosophy, or the myriad issue sub-parts that cut across many different areas of the law: respect for precedent; deference to legislative facts, to state courts, and to findings of administrative agencies; the use of balancing tests and bright line rules; the uses and abuses of foreign law; the significance of the intentions as opposed to the effects of legislation and of popular referenda; the meaning of "rational basis" and application of varying levels of scrutiny; the propriety of exclusionary and other prohylactic rules; the role of horizontal federalism; the special roles (if any) of academic freedom and of the organized press; and many others. A Justice who decides today's case without regard to its broader place in the constitutional scheme is, in effect, a glorified law clerk, applying brainpower but not the wisdom that comes from seeing the whole field of constitutional law.

Indeed, the entire benefit that comes from appointing a Justice who has been a litigator, a legislator, the head of a business and an advisor to the President is supposed to be the nominee's ability to see beyond the individual intellectual issues in a case to how the result will play out in the lower courts, the broader legal profession, and the outside world, where it needs to be implemented. After all, as any practicing litigator knows, even an offhand footnote in a Supreme Court opinion can spawn a whole body of law in and of itself, one the Court might take decades to return to.

But if Miers is indeed as blank a slate on constitutional questions as she now appears, that benefit is significantly blunted as to the most important part of the Court's docket, because there is a real concern that, however smart she is, she could have trouble understanding - as someone experienced in the field would - how the reasoning of her decisions will affect the disposition of other cases on other days, in the Supreme Court and in lower courts.

Maybe Miers has a well-thought-out view of many aspects of constitutional law; maybe we will yet be surprised. But Hugh Hewitt's argument that it doesn't even matter if a new Justice knows the pre-existing 200+ year-old body of consititutional law is misguided, unrealistic, and detatched from the way in which the Court actually operates and in which its decisions play out in the real world.

Maybe it's just my Yankee-hatred and pessimism working together, but I was convinced, when the Angels had a 2-0 lead last night in the 6th inning, that if they didn't hold the lead, their moment, their chance to win this ALDS was gone. So I'll be very surprised if they recover tonight to take Game 5.

The Houston Astros have now played 45 postseason games - and 11 of them have gone extra innings, including an 18-inning game yesterday, a 16-inning game in 1986 (both series-deciding), and three 12-inning games (in 1986, 1999 and the 2004 NLCS), for a total of 34 extra innings. Put another way: the average Astros playoff game lasts 9.76 innings. So, yesterday's marathon takes its place among the classics, but the Astros already have quite a collection, from the heart-stopping 2004 NLCS, to the 1986 NLCS that featured a walkoff homer in game 3 and 12- and 16-inning games on consecutive days in New York and Houston, to the 1980 NLCS that concluded a best-of-5 series with four consecutive extra inning games.

I've been delinquent on catching up on the revised indictment of Tom DeLay; hopefully more on that later. In the meantime, go read former federal prosecutor Andrew McCarthy, though, on why "[t]he investigation of DeLay, a matter of national gravity is being pursued with shocking ethical bankruptcy by the district attorney — by Ronnie Earle."

I'll make this promise: whatever the outcome of the Valerie Plame investigation, and whether or not Patrick Fitzgerald takes any steps in that investigation that warrant criticism, I will not argue that Fitzgerald is some sort of runaway rogue prosecutor. Everything we know about Fitzgerald (a former colleague of McCarthy's, among others) suggests that he is a tough, aggressive, but fair-minded guy.

Well, the Hated Yankees are certainly up against it now, having lost last night with Randy Johnson on the mound and having drained the bullpen to do it. I knew the Yanks were really in trouble when Scott Proctor and his 6.04 ERA came trotting out, although of course by then, Al Leiter (6.13) had already done his share of damage in one of his last steps on the way out of the majors. One thing that struck me last night was the extent to which the game felt like an elimination game, and the managers approached it with that urgency. One thing you have to say about Joe Torre as a playoff manager is that he has a great sense of what games and moments are really important, and throws everything he has at them. If the game had been at all close at the end, we would have seen Mariano Rivera.

That leaves the Yankees' season in the hands of Shawn Chacon, an unthinkable turn of events six months ago. Chacon isn't a terrible pitcher, just a mediocrity (career ERA of 4.39 away from Coors Field), but like last night's losing pitcher, Aaron Small, he has won the trust of Yankees fans by a few months of solid pitching. Against Jarrod Washburn, fourth in the AL in ERA and the winning pitcher in the Game 4 elimination of the Yankees in the 2002 ALDS, the Yankees will probably need to depend on their bats and Mariano.

For those looking to pick over the slender public file of Harriet Miers' writings, this link (via NRO) is a good place to start.

Then there's Beldar - just keep scrolling, because you are not part of an intelligent discussion of Miers' credentials if you aren't reading Beldar, who is doing his best to defend the honor of Texas commercial litigators. This post has some hard information on some of Miers' cases. Beldar pulls 19 reported opinions from Westlaw where Miers' name appears; even granting that state trial courts rarely publish opinions, at least in Texas, that does seem a bit thin to me for 30+ years of practice (the same search for me would turn up 14 opinions, and I've only been in practice for 9 years).

I remain unconvinced that Beldar has proven that Miers is qualified for the job, but I'm keeping an open mind, and I think he's certainly made some good points; we'll learn more at the hearings, and hopefully before then.

As Leon H notes over at RedState, some folks supporting the Miers nomination seem to think that those on the Right opposing the nomination have lost their perspective. Now, I wouldn't recommend leaving the party, or staying home for the next election, over this. But an arguably bad Supreme Court pick is certainly worth getting agitated over.

My question #1 in deciding how mad to get about a decision by our elected officials is, "how hard will it be to change this?" The budget is stuffed with highway pork? Bad, but there's another budget next year. The budget is stuffed with new programs? Worse, since new programs rarely go away. The budget is stuffed with new entitlements that put a permanent drain on the federal fisc? Now, I'm gettin' angry. But even then, all of those are things a new president could change, if he or she had the votes in Congress.

But Supreme Court Justices essentially can't be removed, and their decisions live on for decades or centuries after they are gone (many areas of Constitutional jurisprudence are, to this day, the products of John Adams' nominations). With the (possible) exception of war, no presidential choice has as long-lasting effects as the choice of Supreme Court Justices. What was worse for America - Jimmy Carter in the White House for 4 years, or Harry Blackmun on the Supreme Court for 30? I'm not sure I'd pick Carter; at least after 4 years, we got to have another election, whereas after Breyer was confirmed we had to wait 11 years for another Supreme Court vacancy, and these two latest vacancies are to replace judges confirmed in 1972 and 1981. And nobody now requires presidential candidates to promise not to change anything Jimmy Carter did.

As I'll hopefully explain in more detail shortly, I have not, personally, concluded that Harriet Miers should not be confirmed by the Senate, nor have I even concluded that she would not be a wonderful Supreme Court Justice; rather, I'm still waiting to be convinced on her merits. But I can't fault anyone for complaining about the nomination. This is, to many of us, the #1 or #2 reason (behind only the war) for supporting Republicans for the White House. If Miers is another Kennedy or O'Connor, we will be grumbling over our disappointment for decades. If she is (as I very much doubt) another Souter or Blackmun, we will rue this nomination for the rest of our lives. And even if she is another Thomas, we will be sad if she steps down in 20 years, sad that a younger candidate might have held the fort for longer.

So, yes, this is very much an issue worth getting exercised about. We will live with its consequences all our days, without a second opportunity to do anything about it.

A "credible threat" to the subway system has prompted a vast mobilization of police officers, law enforcement sources said today.

Hundreds of officers were expected to be dispatched as early as this afternoon to every station in Manhattan -- and possibly system wide -- to thwart the attack, which was said to timed to the Jewish High Holidays and the start of the Muslim holy month of Ramadan.

According to sources in intelligence, emergency services and police headquarters, when three Iraqi insurgents were arrested several days ago during a raid by a joint FBI-CIA team, one of those caught disclosed the threat. Because it slipped out during the arrest, the plot was deemed credible.

After several days of work, sources said, the NYPD is increasingly concerned because it has been unable to discredit the initial source and additional information from the source.

The 19 operatives were to place improvised explosive devices in the subways using briefcases, according to two sources. Police Commissioner Ray Kelly said officers will continue to check bags, briefcases and strollers, and additional uniformed and undercover officers will be riding in individual subway cars.

I'm a little confused here - were FBI agents in Iraq? If this "source" was arrested in the U.S., why refer to him as an "Iraqi insurgent"?

Question: If he was arrested in Iraq and his information helps thwart a terror attack in New York, does that help or hurt the case for U.S. troops remaining in Iraq?

I just received a missive from some activist group I've never heard of, urging me to contact Congress and the White House to urge the appointment of a qualified "state or feral judge" to the Supreme Court.

Tom Seaver, who cleared both hurdles easily, with a 2.86 ERA in more than 4,700 innings. Jim Palmer fell just short of 4,000 innings, and Greg Maddux, who joined Seaver in this exclusive club in 2004, saw his career ERA pushed to 3.01 this season (Roger Clemens and Randy Johnson are also above 3.00). The other pitchers besides Palmer with between 3,000 and 4,000 IP since 1920 and a sub-3.00 ERA: Carl Hubbell, Whitey Ford, Bob Gibson, Juan Marichal, and Don Drysdale.

According to the network exit polls, 21 percent of the voters who cast ballots in 2004 called themselves liberal, 34 percent said they were conservative and 45 percent called themselves moderate.

Drum, writing before the confirmation of Roberts and the Miers nomination:

These numbers have been rock steady for decades, and their meaning is simple: energizing the base just isn't enough for Democrats. Even if every hardcore liberal in the country votes Democratic, we have to win about three-quarters of the moderates to gain a majority. That means we have to win support pretty far into the conservative end of that moderate center, and people like that simply aren't going to respond to anti-war rallies and screaming campaigns against John Roberts.

This is one reason I haven't blogged much about Roberts. The liberal blogosphere has made opposition to Roberts practically a litmus test of "getting it," of understanding that liberals can play every bit as hard as conservatives. But you know what? It's the netroots that doesn't get it. They think unyielding opposition to Roberts shows how tough we are, but what most Americans see - including all those moderates whose votes we need - is a guy who seems conservative, but also mild mannered, intelligent, and well qualified. It's true that he took nonresponsiveness to whole new levels during his confirmation hearings, but let's face it: that particular Kabuki dance started after Robert Bork flamed out spectactularly for being a little too forthcoming to Senate questioners. Roberts just refined it a bit.

The fact is, by every previous standard of Supreme Court nominees, Roberts is well qualified for his position. Is he conservative? Of course he is. But that's because the American public elected a conservative president and a conservative Senate. If we want better nominees, that's what needs to change.

And the way to change that is to change the minds of centrist voters who are tiring of George Bush and the Republican party but still wary of Democrats. They may say they're fed up with Bush, but when it comes time to pull the lever on election day they also need to feel like it's safe to vote for a Democrat. Right now they still don't.

Of course, the corollary is that the GOP needs its base more than the Democrats do - which is something Bush seems to have forgotten with the Miers nomination. I'm not sure which is the more depressing possibility: that Bush, Cheney and Rove didn't know that this nomination would provoke a furious reaction from the base (which was entirely predictable), or that they didn't care. It was one thing to blow off the base on an issue like steel tarriffs, which are pretty small potatos to most people and could be explained in terms of obvious political benefits. But the Supreme Court is, for a large segment of the GOP, the #1 or #2 issue in presidential elections, often trailing only national security and/or taxes.

During Saturday's game, some of the Red Sox employees were kind enough to bring me and my buddy J-Bug into their offices to show us the 2004 trophy. At least, I think that's what happened -- laying eyes on that trophy was like seeing someone remove their head, then hand it to you and say, "Hey, here's my head." There's simply no adequate reaction other than complete disbelief -- not just that it was the World Series trophy, but that it belonged to the Red Sox.

Working backward from Baseball Prospectus' daily odds of each team making the playoffs (a calculation that appears to take in things like the standings, schedule strength, and games remaining at home), Clay Davenport rates the collapse of the 2005 Indians as the eighth-worst of all time, given that at as of Sunday, September 25, Cleveland rated as having a 96.5% chance of making the playoffs, slightly higher than the best odds held at any point by the 1964 Phillies. Davenport rates the seven biggest collapses, by odds of making the playoffs as of August 1 or later:

Amazingly, there are no Red Sox teams on this list, whereas the Dodgers and Giants take a beating. A few of these teams, notably the 1993 Giants and 1942 Dodgers, are more noted for how well the team that caught them played. The 1983 Braves mainly unraveled because of the loss for the season of Bob Horner, who'd been integral to the team building a big lead in the NL West.

You can see the 1983 Braves' collapse - which brought to a gruesome close the one brief moment between 1969 and 1991 when the Braves were a contender - by viewing their batting stats through and after August 10, and their pitching stats through and after August 10. You can see that the other major culprit on the offensive side was Chris Chambliss (who dropped off from .290/.521/.377 to .248/.358/.333). On the pitching staff, Pascual Perez dropped from 13-3, 3.02 ERA to 2-5, 4.41, Pete Falcone from 8-1, 2.96 to 1-3, 6.23, Steve Bedrosian from 7-5, 2.84 and 16 saves to 2-5, 5.74 and 3 saves. Phil Niekro also pitched poorly down the stretch, leading to his release after 20 years as a Brave. Of course, the panic trade for Len Barker, completed after the season with Brett Butler and Brook Jacoby, didn't help. Joe Torre was fired a year later.

Somehow, like clockwork, I always wind up being swamped at work just as the playoffs start, and thus unable to offer a proper playoff preview. This year being no exception, I'll just offer a few quick picks:

*ALDS: Hated Yankees over Angels. Yes, I know the Angels match up well with the Yanks and give them fits, but this Yankees team has too much firepower to go down this quiclkly.

*ALDS: White Sox over Red Sox. The Pale Hose finished with a rush after an extended slump, and are hot again at just the right time. They have better pitching than the champs, and while they're not as good a team all around, I don't see a Red Sox-Yankees replay in the cards. So, I pick the White Sox to win their first postseason series since throwing the 1919 World Series.

*ALCS: Yankees over White Sox. If this is indeed the matchup, I predict a sweep.

*NLDS: Braves over Astros. On paper, the Astros are a better team with better frontline pitching, but there's a history here - the Astros have drawn Atlanta in the first round in their last four playoff appearances and five of six playoff appearances since 1997. Last year, when Beltran went bonkers, was the only time they won. Of course, the health and stamina of Clemens and Smoltz is key. Maybe it's my superstitious awe of Bobby Cox and Leo Mazzone, but I go with the Braves.

*NLDS: Cardinals over Padres. St. Louis' pitching has unraveled in the last few weeks, but the Padres give them the chance to get healthy again. Probably a 3-1 series.

*NLCS: Cards over Braves. Pujols & Co. are on a mission; the Braves by this point will be firmly in over their heads.

*World Series: Cards over Yankees. All bets could be off if Carpenter and Mulder can't get straightened out, but otherwise this St. Louis team is the class of the field, and so I'll predict them to win it all. I'm not counting out the Yankees, but they are definitely vulnerable with their pitching.

Of the other six teams, probably the best bet to stage a surprise run would be Houston, with the Big Three. But I'll go with my picks.

But there are a large number of reasons to be less than thrilled with Miers either as a nominee or as a prospective Justice. First, she's not young; at 60, Miers is older than almost all of the widely-discussed candidates. Second, Bush passed over a number of people well-known to be brilliant academics, appellate advocates and/or appellate judges to get to her, including Michael McConnell, Miguel Estrada, J. Michael Luttig, Danny Boggs, and Edith Jones. Miers may well be highly intelligent, but she has no such reputation. Third, Bush also passed over experienced trial judges - Jones, Emilio Garza, Edith Brown Clement. There's actually a lot to be said for having a Justice who has trial-level experience, since the Court does, after all, sit atop a system of courts, and a Court with nobody who has sat at the point where the court system actually interfaces with the general public - where factual evidentiary records are developed, juries are instructed in the law, injunctions are granted, and criminal defendants sentenced - is a Court that lacks an essential perspective on its role in the system of justice. Of course, Miers was a commercial litigator for years, so that's a fair substitute for experience as a trial judge on the civil side, but I'm not sure if she has any criminal experience. And much of her career path has been spent as an administrator, running a law firm, running the Texas Bar, running the Texas State Lottery, and working in the White House for five years. She presumably hasn't seen a courtroom in a decade.

Miers may well play well on TV, as John Roberts did. But Roberts entered the game with a powerful advantage: his unchallenged reputation for brilliance and high qualification. Her personal story - a never-married woman who worked her way up through male-dominated Texas law firms to become the first president of the Texas State Bar, breaking lots of 'glass ceilings' in the process - could be an inspiring tale to feminists, but since they are the #1 group automatically opposed to any Bush nominee, Miers' political benefits should be blunted.

I have to confess that at the time, I was mostly joking. Harriet Miers is a capable lawyer, a hard worker, and a kind and generous person. She would be an reasonable choice for a generalist attorney, which is indeed how George W. Bush first met her. She would make an excellent trial judge: She is a careful and fair-minded listener. But US Supreme Court?

In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met. She served Bush well, but she is not the person to lead the court in new directions - or to stand up under the criticism that a conservative justice must expect.

By picking an advisor known well to the president but without well-known views or qualifications in the larger legal community, Bush is asking us to trust him. And, personally, I do trust him. But for the public at large, "trust me" works a lot better for a president with high approval ratings and lots of political momentum than for a Chief Executive who has been off his stride and on the defensive much of the year. Especially given that Miers' selection plays right into the hands of the Democrats' recent drive to complain about Bush appointing "cronies." I just can't think that Harriet Miers was the best person for the job.

What do Miers and Roberts have in common? They both have significant executive branch experience, and both seem more likely than other potential candidates to uphold the Administration on issues related to the War on Terror (e.g., Padilla and whether a citizen arrested in the U.S. can be tried in military court). Conservative political activists want someone who will interpret the Constitution in line with conservative judicial principles. But just as FDR's primary goal in appointing Justices was to appoint Justices that would uphold the centerpiece of his presidency, the New Deal, which coincidentally resulted in his appointing individuals who were liberal on other things, perhaps Bush sees his legacy primarily in terms of the War on Terror, and appointing Justices who will acquiesce in exercises of executive authority is his priority, even if it isn't the priority of either his base or the nation as a whole. Such Justices may be coincidentally conservative on other issues, just as FDR's nominees moved the USSC generally to the Left.

FOURTH UPDATE:John Hawkins of Right Wing News sets the bar for disappointment: "a Bush crony with no real conservative credentials . . . To merely describe Miers as a terrible pick is to underestimate her sheer awfulness as a selection."

In my view, the Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer. The current justices have all been chosen from the lower federal courts. A nominee with relevant non-judicial experience would bring a different and useful perspective to the Court.

I agree with that, although I'm withholding judgment on what she brings to the table until I hear more about what exactly her litigation experience consisted of. Meanwhile, Hugh Hewitt finds it in himself to back Bush on this after all. My take: the best conservatives can hope for is that Miers is a follower, not a leader.

Many things can be said about Jose Reyes' season, but getting from start to finish without missing a beat due to injury has to be a huge accomplishment. If you had "696" in the "how many at bats will Reyes have" pool, you can tip your cap. Yes, Reyes has a lot to learn in terms of plate discipline, but you can't learn the game until you can play the game. Getting a true full season in the big leagues under his belt is a big one.

I was out at Shea today, and it was a nice sendoff for Mike Piazza (hint: teams that expect to re-sign a free agent don't do a video montage retrospective so the fans can say goodbye). It was also, in other ways, a fitting end to the Mets careers of Victor Zambrano and (please) Danny Graves, both of whom got roughed up. I wish Zambrano well, but I have to figure he'll be non-tendered and go somewhere where he won't be haunted by the rise of Scott Kazmir. Graves, meanwhile, should consider a career that does not involve throwing a baseball.

If you haven't seen them by now, the first-ever pictures of a giant squid in the wild are indeed pretty cool, as blurry and distant as they are. The squid - huge, believed to be highly intelligent, thought to exist in large numbers, and long able to elude human observation even in this high-tech era - is in many ways the most impressive member of the animal kingdom.

Getting back to the original reason I was checking the website for my Congressman, Gary Ackerman (D-Queens), I was looking for examples of pork barrel spending in my district that could be a target for the Instapundit/N/Z. Bear "Porkbusters" campaign to put pressure on Senators and Members of Congress to accept spending cuts on pork projects in their states and districts to help pay for the massive rebuilding efforts needed in the wake of Hurricane Katrina (and, perhaps, Hurricane Rita as well).

U.S. Rep. Gary Ackerman (D-Queens/L.I.) today announced that his fifth Congressional district is number one in New York State and 37th in the nation for receiving the most in federal dollars - $9.5 billion in 2001 - according to a study conducted by the Associated Press (AP).

The news wire service's analysis compared total federal government spending among the nation's 435 congressional districts. The totals include demographic-based funding such as Social Security and Medicare, direct spending on regional projects and government loans and insurance.

Ackerman noted the high ranking despite the fact that he's a Democrat in a Republican controlled Congress. The Congressman's district stretches throughout the north shore of Queens, Nassau and Suffolk counties.

The only other New York district to make the top 130 on the AP list, was upstate Rep. Mike McNulty, a Democrat from Albany who placed second in the state and 45th in the nation with $8.8 billion.

$2.240 million: Reconstruction and expansion of Little Bay parking lot at Fort Totten in Bayside. This project is designed to expand the parking capacity of the former army base which is now a new public park. The plan includes:

· More than doubling the number of spots from 136 to 285.

· Removing existing pavement and guide rails.

· Installing interceptor catch basins and drywells.

· Installing new waterfront sidewalks and entry plazas to the fishing jetty and greenway.

· Rerouting the greenway along the waterfront with new asphalt pavement and greenway markings.

Fort Totten was a U.S. Army base built in 1857. Most of the facility was slated to be excessed by the federal government in 1995 as part of military base closings across the nation. The property, which is among the most prime pieces of waterfront real estate in New York, is in the process of being transferred from the federal government to the City for use as one of the region's most creative and beautiful public parks, pursuant to the community's wishes. Completion of the transfer is imminent.

[snip]

Once Fort Totten becomes a park, the property will be managed by the New York City Parks Department which will also administer the parking renovation project. The Cross Island overpass/212th Street undertaking will be performed by the City Transportation Department.

A total of 49.5 acres of Fort Totten will be given to the city for parkland when the property is transferred. An additional 10 acres, which recently became available and includes the Fort Totten Coast Guard Station, will also be turned over to the City at a later date. Ackerman last year persuaded the federal government to award the Coast Guard property to the city for additional parkland rather than use it for homeless housing. In addition, a separate and smaller piece of the property will continue to be utilized as a New York City Fire Department training academy. The 77th U.S. Army Reserve will also keep their existing facility on the fort.

All of this sounds very nice . . . I'm certainly in favor, within reason, of spending some money on public parks in the City. But if the park will benefit only local residents - as it will - and the land is being turned over to the City, why should federal money be spent on this? Or, more properly, (1) why should my tax dollars have to go to Washington to come back to Queens to spend on a purely local project, and (2) why shouldn't the decision about whether this project makes budgetary sense be a decision made locally by the City, to be balanced against other local spending priorities? Pork.

Next up:

· $3.376 million: Redesign and Reconstruction of the Cross Island Parkway bridge overpass and 212th Street in Bayside (the only road providing access to Fort Totten). This undertaking is intended to reduce any potential traffic congestion. It entails:

· A full redesign and reconstruction of the parkway overpass including abutments, wingwalls and the parkway approach roadways.

· A redesigning and reconstructing of 212th Street from the Cross Island Parkway Service Road to Bell Boulevard.

· Lining-up the two sides of 212th Street at the Bell Boulevard intersections which are presently not aligned.

· Improving the capacity and operation of 212th Street between Bell Boulevard and the Cross Island Parkway service road.

· Improving access to the Bayside Waterfront Bicycle Path.

This, again, is local spending on local roads; there's nothing here to suggest that this is needed to, say, improve the flow of interstate trucking or some similar national purpose. If it's worthwhile, let Bloomberg ask for the money. Pork.

· $880,000: Downtown Flushing Multi-Modal. Funds for this project are to be used for increasing connectivity for pedestrians, bicyclists and vehicles between the Downtown Flushing retail core/transit hub and areas located to the west including College Point Boulevard., Shea Stadium, Flushing Meadows-Corona Park and the Flushing World’s Fair Marina. The project is also designed to decrease traffic congestion. It is composed of 3 interconnected components:

1. Improvements to College Point Blvd. to help soften its industrial character and facilitate better access to sites located along the Flushing River. Included in this component would be recommending the most feasible means to connect bikeways located to the north and south of College Point Blvd.

2. Identifying and Implementing the most feasible and cost effective connection from Northern Blvd. to College Point Blvd. to relieve congestion in the central core and improve vehicle access from LaGuardia Airport.

3. Streetscape improvements to Roosevelt Ave. to facilitate easier pedestrian connection between College Point Blvd. and the inter-modal transit hub located at the intersection of Main Street and Roosevelt Blvd.

We're getting down to penny-ante stuff here by federal budget standards, but you have to draw the line somewhere. Pork.

· $800,000: Downtown Flushing Traffic and Pedestrian Improvements. Funding for this undertaking has been earmarked for the studying, designing and construction of numerous bikeway enhancements, pedestrian improvements and traffic management measures. It is intended to build upon and complement ongoing initiatives being undertaken by the New York City Economic Development Corporation (NYCEDC) and NYC Department of City Planning. These efforts will help provide inter-modal transit support in the area, while improving pedestrian circulation, linking bike and pedestrian routes with public transit, reducing pedestrian/vehicular conflicts and accidents, proving traffic calming measure, thus improving vehicular congestion and air quality.

Local, local, local. Pork.

$384,000: Roosevelt Avenue Waterfront Access. This project is designed to improve this underutilized, city-owned waterfront site located under and adjacent to the Roosevelt Avenue Bridge to provide pedestrian and bicycle access to the Flushing River Waterfront. This revitalization is a mandated component pf the Downtown Flushing Waterfront Access Plan, adopted in 1998 by the New York City Council. The Plan requires that new commercial or mixed-use development on seven parcels along the Flushing River provide shore public walkways, upland connections to the shore public walkway and visual corridors in locations indicated by the Plan. Specifically, this project is for construction of a shore public walkway and sitting area on the only City-owned site located within the Downtown Flushing Waterfront Access Plan. It will improve the deteriorated sidewalk adjoining the Roosevelt Ave. Bridge and design and construct a 40 foot space along the river, as well as a bike rack, signage and improved lighting.

Sidewalks. Bike racks. We've come a long way from providing for the national defense, here. Pork.

$4.8 million: Parking and road improvements at Long Island Jewish Medical Center in New Hyde Park. This project will enable the North Shore Long Island Jewish Health System to build a new parking facility and improve roadway access through its Long Island Jewish Medical Center campus in New Hyde Park. The project will provide 650 additional parking spots for patients, visitors and employees of the medical center, significantly reduce parking problems and traffic congestion within the neighborhoods surrounding the L.I.J. campus and greatly enhance emergency vehicle access to the L.I.J. Emergency Department by creating a dedicated entrance for ambulances.

The project is also expected to reduce congestion and improve traffic flows on Lakeville Road. In addition, the plan will provide a direct connection to Lakeville Road and create easy access from local highways directly to the parking structure. These improvements should also reduce traffic generated air pollution and improve air quality in the region.

A parking lot? And can't LIJ - which is a fine hospital, by the way - pay for some of this stuff itself? Pork.

· $320,000: Traffic Calming and Safety Improvements for Great Neck Road in Great Neck. This project, which includes the stretch of Great Neck Road between Water Mill Lane and Clair Street, is designed to mitigate traffic and substantially improve pedestrian and motorist safety. The plan includes street parking improvements, travel lane upgrades, a mid-block speed table with a crosswalk, direction control and neckdowns (curb extensions at intersections that reduce roadway width for pedestrians).

Presently, the area suffers from critical safety hazards caused by congestion, u-turns, double and inadequate parking, difficult pedestrian crossings, poor site lines and poor road conditions among other items.

Great Neck Road is used as a primary arterial route from Northern Boulevard in Queens to the Great Neck Peninsula. It also carries a significant amount of traffic during the AM and PM weekday rush hours and is a highly visible and active business corridor. In addition to alleviating congestion and improving safety, the project will improve the strip's economic activity and the overall quality of life in the area.

A further amusing aside: you can tell from Ackerman's website that trumpeting local spending is priority #1 for his use of the internet. While there are up-to-date press releases for the 2005 transportation bill, his site is otherwise woefully out of date: there's still what looks like an anthrax-related disclaimer on the site:

Although mail delivery to United States Capitol offices has resumed, the delivery process is still very slow. Until the process is more timely, the best way to contact me is email. Please click on the link to the left labeled Contact Gary.

UPDATE: Here is the email I submitted on a form on Congressman Ackerman's website:

Dear Congressman Ackerman:

I write, as a constituent, to ask for you to join in the movement to return federal funds appropriated for local transportation projects so that they can be used to pay for the massive rebuilding efforts needed in the wake of Hurricane Katrina. I have noted, on my website, examples taken from your press releases of more than $12 million just in funds from the latest transportation bill that do not represent any urgent federal priority and could be more urgently needed to assist in the reconstruction of hurricane-affected areas without further expanding federal spending. I have more extensively discussed the matter here:

http://baseballcrank.com/archives2/2005/10/politics_ackerm.php

This is a nationwide movement. Thus far, two Members of Congress - including your party leader, Nancy Pelosi - have pledged to return transportation funds from their districts to help offset the hurricane-related costs. Details are here:

The Red Sox, coming into their series with the Hated Yankees this weekend, ran into a buzzsaw in the person of Frank Catalanotto. And there's nearly nobody in baseball who gets hotter - at least relative to how good he is otherwise - than Frank Catalanotto.

And the total line from these thirteen red-hot streaks, amounting to about a full season's worth of at bats:

AB

H

2B

3B

HR

R

RBI

BB

HBP

AVG

SLG

OBP

620

272

62

8

24

125

117

55

15

.439

.681

.490

Wow. Those are Rogers Hornsby numbers. Unsurprisingly, Catalanotto's career line drops off sharply if you take these streaks out; the rest of the time, he's a .252/.385/.318 hitter. Now, it's true enough that you can cherry-pick hot streaks from any hitter's career. But I have to think that few guys I can remember have been as consistently streaky as Catalanotto.

I received in the mail about a month ago a review copy of The Numbers Game, by Alan Schwarz, which is now out in paperback and which I had somehow missed when it was first released in hardcover. I strongly recommend this book; if you like baseball statistics half as much as I do, you will enjoy it too.

The Numbers Game is a history of baseball statistics and the people who take them seriously, from the beginnings of box scores and newspaper tabulations up through the modern age of sabermetrics, live-updated internet stats, and Rotisserie madness, covering everything in between: stats in the broadcast booth, stats in tabletop games, controversies over batting titles, stats on baseball cards. It's an easy read; Schwarz uncorks a few good one-liners, but mainly his writing style is clear and straightforward, as he's content to let the story tell itself. If there's one flaw, albeit an unaviodable one, it's that there's only so many ways to tell the basic biographical background story of "but as a kid, what really fascinated him was baseball statistics . . . other people thought he was wierd . . . he did it on the side for his own enjoyment for years before he found an outlet . . ." This essential formula is repeated over and over in the book, as it is indeed the story of so many of the book's protagonists.

Schwarz begins with Henry Chadwick, the inventor of box scores and the game-scoring system and, essentially, the father of baseball statistics. One of the themes of the book's opening chapters is that many things we take now as newfangled modern innovations - from on base percentages and range factors to the obsession with rating players by the numbers in the first place - were there from the very beginning in the work of Chadwick and others in the 1860s and 1870s. Schwarz notes that one of the early enthusiasts about using statistics to manage a roster was Harry Wright, player-manager-proprietor of baseball's first-ever professional team. Today's stathead-bashing old fogeys may think they are old school, but it is not possible to be more old school than Chadwick and Wright.

The first challenges for the author of a book about a subject I know so well already are to (1) not leave out the stuff I know and expect to see in the book, and (2) tell me some things I don't already know. Schwarz succeeds on both fronts. Every time I kept thinking he needed to discuss a particular topic, he got to it. And there were a lot of new tales told along the way.

The older parts of the book were familiar to me from Bill James' work, among others; for example, James' book on the Hall of Fame had already recounted the stories of Ernest Lanigan and Lee Allen. And the more recent parts were familiar from having lived through them, from a chapter on James to the story of STATS, Inc. and Project Scoresheet to a summary of Voros McCracken's findings to the whole Oakland A's/Moneyball saga. Although I had not been familiar with the work of Eric Walker, who Schwarz identifies as the man who passed the torch of OBP to Sandy Alderson before it went to Billy Beane. (And I hadn't previously read about how the teenaged Beane used to set underperforming Strat-O-Matic cards on fire, a mental image that should chill anyone who plays for him today). And Schwarz makes the point about baseball owners that, hesitant as they were to use statistical analyses to evaluate their players for the mere purpose of winning games, they were much faster to adapt to new ways of thinking when it came to winning salary arbitrations, where money was on the line.

In between is where the real new-to-me material lies: profiles of the men who developed baseball's historical records and kep the spirit of inquiry alive through the dark ages from about 1910 through the stats bonanza that followed the 1969 publication of the Macmillan Baseball Encyclopedia (the compilation of which is the subject of its own chapter in Schwarz's book). The book's villian is Seymour Siwoff of the Elias Sports Bureau; Schwarz tries to give Siwoff's story a sympathetic rendering, and makes clear that his feud with Bill James was in large part a result of James' own prickly personality and iconoclastic writing style. But Siwoff just keeps popping up, fomenting litigation, pushing around idealistic rivals and upstarts, sneering at things in public while selling them in private, and generally playing Scrooge. (Of course, Siwoff's not the only bad guy - even Barry Bonds makes a cameo to deliver a gratuitous insult - but he's the one who persists throughout the book's second half).

Like I said, it's a fun book - a book about my people, as it were. Enjoy.

Tom Glavine finishes with 211.1 innings pitched, as compared to 212.1 in 2004.

Both pitchers struck out fewer batters than the previous year, but sharply cut their walks and home runs allowed; Pedro also reduced his hits allowed from 193 to 159, while Glavine allowed more hits.

I have to say, I gave up on Glavine repeatedly from 2003 through early this season, but after altering his pitching style (i.e., recognizing that he couldn't win anymore doing the same old thing), he really rebounded to be a whole new pitcher the second half of the season.